                                                                                         ACCEPTED
                                                                                    13-15-00039-CV
                                                                    THIRTEENTH COURT OF APPEALS
                                                                           CORPUS CHRISTI, TEXAS
                                                                               9/30/2015 1:20:38 PM
                                                                                   Dorian E. Ramirez
                                                                                              CLERK


                             NO. 13-15-00039-CV
                                                      FILED IN
                                              13th COURT OF APPEALS
                                           CORPUS CHRISTI/EDINBURG, TEXAS
                            13TH COURT OF APPEALS
                     IN THE 13TH
                                               9/30/2015 1:20:38 PM
                      SITTING IN EDINBURG, TEXAS
                                                DORIAN E. RAMIREZ
                                                       Clerk
__________________________________________________________________

                             DENNIS AMBROSE
                                       Appellant

                                     v.

                CITY OF BROWNSVILLE, TEXAS AND
         PUBLIC UTILITIES BOARD OF BROWNSVILLE, TEXAS.
                                    Appellees

__________________________________________________________________

                      APPELLEES’ AMENDED BRIEF
                      APPELLEES'


TREVINO & BODDEN                          DAVIDSON TROILO REAM &
805 Media Luna, Suite 300                 GARZA
Brownsville, Texas 78520                  A Professional Corporation
956-554-0683 (telephone)                  7550 West I.H.-10, Suite 800
956-554-0693 (fax)                        San Antonio, Texas 78229
E-mail: etrevino@trevinobodden.com        210-349-6484 (telephone)
                                          210-349-0041 (fax)
                                          E-mail: lream@dtrglaw.com

By: /s/
     /s/ Eddie
         Eddie Trevino,
               Trevino, Jr.
       Eddie Trevino, Jr.                 By: /s/ Lea A. Ream
        State Bar No. 20211135                  Lea A. Ream
                                                 State Bar No. 16636750

                                          ATTORNEYS FOR APPELLEE

               APPELLEES REQUEST ORAL ARGUMENT
                  IDENTITY OF PARTIES AND COUNSEL

     Appellees submit the following list of names and addresses of all parties and
counsel pursuant to Tex. R. App. P. 28.1(a):

Appellant   :      Dennis Ambrose

Appellees   :      City of Brownsville, Texas and The Public Utilities Board of
                   Brownsville, Texas

Counsel
Counsel for
         forAppellant: Ruben R.
            Appellant: Ruben R. Pena
                                Pena
                       SBN 15740900
                       125 Old Alice Road
                       Brownsville, Texas 78520
                       956-546-5775 (telephone)
                       956-546-5778 (fax)
                       Riolaw1@aol.com
                       Riolawl@aol.com (email)

Counsel for Appellees:   Eddie Trevino, Jr.
                         SBN 20211135
                         Trevino & Bodden
                         805 Media Luna, Suite 300
                         Brownsville, Texas 78520
                         956-554-0683 (telephone)
                         956-554-0693 (fax)
                         etrevino@trevinobodden.com
                         etrevino@a,trevinobodden.com (email)

                         Lea A. Ream
                         SBN 16636750
                         Davidson Troilo Ream & Garza
                         7550 West IH 10 Suite 800
                         San Antonio, Texas 78229
                         210-349-6484 (telephone)
                         210-349-0041 (fax)
                         lream@dtrglaw.com (email)




                                     ii
                                    TABLE OF CONTENTS

                                                                                               Page

IDENTITYOF PARTIES AND COUNSEL .................................................ii
                                                                                ii

TABLE OF CONTENTS.............................................................................iii
         CONTENTS                                                                             iii

INDEX OF AUTHORITIES................................................................iv,
         AUTHORITIES                                                                iv, v, vi

STATEMENT OF THE CASE.....................................................................2
                 CASE                                                                     2

ISSUES PRESENTED ……………………………………………………..2,3
                                      .2,3

STATEMENT
STATEMENT OF
          OF FACTS………………………………...............................3
             FACTS                                           3

SUMMARY
SUMMARY OF
        OF THE
           THE ARGUMENT……..………….....................................7
               ARGUMENT                                             7

ARGUMENT……………………………………………………………….8,22
ARGUMENT                         8,22

    1. The
    1. The trial
           trial court’s order granting
                 court's order granting Appellees'
                                        Appellees’ Plea
                                                   Plea to
                                                        to the
                                                           the Jurisdiction
                                                               Jurisdiction
       should be sustained.
    2. The Appellant has waived any and all unasserted bases for jurisdiction.


PRAYER
PRAYER ………………………………………………………………………23
                                  23

               SERVICE                                                                       24
CERTIFICATE OF SERVICE.......................................................................24

CERTIFICATE OF COMPLIANCE                     24
               COMPLIANCE………………………………………......24

APPENDIX……………………………………………………………………..25
APPENDIX                           .25

        Plaintiff’s Second Amended
        Plaintiff's Second Amended Original
                                   Original Petition
                                            Petition




                                                iii
                           INDEX OF AUTHORITIES

CASES                                                                     PAGE(S)

Bland Indep. Sch. Dist. v. Blue, 34 S.W. 3d 547, 554 (Tex. 2000) ……….8,9
                                                                     8,9

Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896
(Tex.App.-Dallas 2010, no pet.) ……………………………………………22              22

City of Canyon v. McBroom, 121 S.W.3d 410
(Tex. App. – Amarillo
      App. — Amarillo 2003,
                      2003, no pet. h.) …………………………………… 13
                            no pet.

City of Dallas v. Blanton, 200 S.W.3d 266, 272
(Tex.App.-Dallas 2006, no pet.) ……………………………………………17,22
                                                 17,22

City of Fort Worth v. Crockett, 142 S.W.3d 550, 552
                                                       10
(Tex. App. - Fort Worth 2004, pet. denied)…………………………………10
                                   denied)

City of Paris v. Abbott, 360 S.W.3d 567, 582
(Tex. App.—Texarkana 2011, pet. denied) …………………………………16
                                                     16

City of San Antonio v. Hardee, 70 S.W. 3d 207, 212
(Tex. App. San Antonio 2001, no pet.) ………………………………………8
                                                     8

City
City of San Antonio
     of San Antonio v.
                    v. Summerglen
                       Summerglen Property
                                  Property Owners
                                           Owners Ass
                                                   Ass’n
                                                      'n Inc.,
                                                         Inc.,
185 S.W.3d 74 (Tex. App.-San Antonio, 2005, pet. denied) …………………8
                                                                8

City of Weslaco v. Cantu, 2004 WL 210790
(Tex. App. – Corpus
      App. —  CorpusChristi,
                     Christi, 2004, no pet. h.) ……………………………….13
                              2004, no                       13

Concerned Cmty. Involved Dev., Inc. v. City of Houston,
                                              th
209 S.W.3d 666, 670 (Tex. App.- Houston [14
                                          [14th  Dist.] 2006,
                                                        2006, pet. denied) ….18
                                                              pet. denied) ....18

Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540,
                                                 540, 542
                                                      542 (Tex. 2003) …..13
                                                          (Tex. 2003) .....13

Farrell v. Rose, 253 N.Y. 73, 170 N.E. 498, 499 (1930) ……………………20
                                                               20

Felts v. Harris County, 915 S.W.2d 482 (Tex. 1996) ………………………….20
                                                              20

G.C. & S.F. Ry. v. Fuller, 63 Tex. 467, 470-71 (1885) …………………….....20
                                                                   20


                                      iv
Hardin County Community Supervision and Corrections Department v. Sullivan,
           186, (Tex.
106 S.W.3d 186, (Tex. App.
                      App.—– Austin
                             Austin 2003, pet. denied) …………………..13
                                    2003, pet.                       .13

Hart Bros. v. Dallas County, 279 S.W. 1111, 1111 (Tex. 1926) ……………20
                                                                  20

In re N.E.B., 251 S.W.3d 211, 212 (Tex.App.-Dallas 2008, no pet.) ………..22
                                                                      .22

Leatherwood v. Prairie View A&M University, 2004 WL 253275
(Tex. App. – Houston
      App. — Houston[1st
                      [1stDist.],
                          Dist.], 2004, no pet.) …………………………….13
                                  2004, no                   13

L–M–S Inc.
L—M—S          Blackwell, 149 Tex. 348, 233 S.W.2d 286, 289 (1950) ………20
       Inc.v.v.Blackwell,                                             20

McIntyre v. Wilson, 50 S.W.3d 674, 682
(Tex.App.-Dallas 2001, pet. denied) …………………………………………22
                                                    22

Smith v. City of League City, 338 S.W.3d 114
(Tex. App.--Houston [14th Dist.] 2011, no pet.) …………………………….18
                                                            18

State v. BP Am. Prod. Co., 290 S.W.3d 345, 348
(Tex.App.-Austin 2009, pet. denied) ………………………………………...11
                                                    ..11

State v. Holland, 221 S.W.3d 639, 643 (Tex.2007) ………………………….17
                                                            17

State v. Walker, 441 S.W.2d 168, 173 (Tex. 1969) …………………………..21
                                                            .21

State v. Whataburger, Inc., 60 S.W.3d 256
                         th
(Tex. App—Houston [14[14th  Dist.] 2001, pet. denied) ………………………...20
                                                                ..20

Suleiman v. Texas Department of Public Transportation, 2010 WL 2431076
(Tex. App.—Houston [1[1stst Dist.] 2010, no pet.)(mem.op.) …………………..21
                                                                     .21

Tex.
Tex. Natural Res. Conserv.
     Natural Res. Conserv. Comm
                           Comm’n
                                'n v.
                                   v. IT-Davey,
                                      IT-Davey, 74 S.W.3d 849, 855
(Tex. 2002) ……………………………………………………………………88

Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) …99

Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26
(Tex. 2004) ……………………………………………………………………9,                              10
                                                                   9, 10

Texas
Texas Workers’ Comp. Comm
      Workers' Comp. Comm’n
                          'n v.
                             v. Patient
                                Patient Advocates
                                        Advocates of
                                                  of Tex.,
                                                     Tex.,


                                     v
136 S.W.3d 643, 658 (Tex. 2004). ………………………………………….15
                                                  15

Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006) …………………9
                                                               9

United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1378 (2010)…16
                                                                  (2010) 16

Univ. of Texas Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929
(Tex. 1995) …………………………………………………………………15                          15

Withrow v. Schou, 13 S.W.3d 37,
                            37, 40–41
                                40-41
(Tex. App.—Houston [14th Dist.] 1999, pet. denied) ……………………..16
                                                            .16

CONSTITUTION                                                       PAGE(S)

TEX. CONST. art. I, §§ 17
                       17 …………………………………………………17,
                                             17, 21

TEX. CONST. art. I, § 19 ………………………………………………….5,
                                             5, 14

STATE STATUTES AND RULES                                             PAGE(S)

TEX CIV. PRAC. & REM CODE § 51.014 (a)(4) …………………………16
                                                    16

TEX.
TEX. GOV’T CODE §§ 2007.002
     GOV'T CODE    2007.002 …………………………………………….6,11
                                              6,11

TEX. GOV'T CODE §§ 2007.004(a), .021(b) …………………………………11
                                                     11

TEX. GOV'T CODE §§ 2007.021(b), .022(b) ………………………………...11
                                                     ..11

TEX. GOV'T CODE § 1502.002 (a) ……………………………………….....19
                                                   19

TEX. PROP. CODE § 21.012 ………………………………………………...6,
                                            ..6, 12

TEX. PROP. CODE § 21.011 ………………………………………………… 14

TEX. R. APP. P. 38.1 …………………………………………………………22
                                           22

TEX. WATER CODE § 11.035 ……………………………………………….6,22
                                            6,22

42 U.S.C. § 1983 ……………………………………………………………….5,22
                                          5,22



                                    vi
                        NO. 12-15-00039-CV


                        13TH COURT OF APPEALS
                 IN THE 13TH
                  SITTING IN EDINBURG, TEXAS

__________________________________________________________________

                        DENNIS AMBROSE
                                  Appellant

                                 v.

              CITY OF BROWNSVILLE, TEXAS AND
       PUBLIC UTILITIES BOARD OF BROWNSVILLE, TEXAS.
                                  Appellees

__________________________________________________________________

                        APPELLEES'
                        APPELLEES’ BRIEF
__________________________________________________________________


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:




                             1
                           STATEMENT OF THE CASE

           this case
        In this  case David
                      David Ambrose,
                            Ambrose, Plaintiff
                                     Plaintiff in the
                                                   the Trial
                                                       Trial Court
                                                             Court and
                                                                    and Appellant
                                                                         Appellant

herein, filed
herein, filed suit
              suit to enjoin
                      enjoin the use
                                 use of
                                     of his
                                        his property
                                             property by
                                                      by the
                                                          the City
                                                              City of
                                                                    ofBrownsville
                                                                       Brownsville

(“City”) and the
("City")     the Public
                 Public Utilities
                        Utilities Board
                                  Board of
                                        of Brownsville (“BPUB”), Defendants
                                           Brownsville ("BPUB"), Defendants in

    Trial Court
the Trial Court and
                and Appellees
                    Appellees herein,
                              herein, when
                                      when resaca
                                            resaca restoration
                                                    restoration operations
                                                                operations began
                                                                           began

                                          resacas historically
which were intended to reduce flooding of resacas historically used by Appellees
                                                                       Appellees

as part
as part of
        of Brownville's
           Brownville’s water system.
                              system. Defendants/Appellees
                                      Defendants/Appellees filed
                                                           filed aa Plea
                                                                    Plea to the

Jurisdiction claiming
             claiming Plaintiff/Appellant
                      Plaintiff/Appellant failed
                                          failed to
                                                 to assert
                                                    assert a valid cause of action for

which their immunity
            immunity had
                     had been
                         been waived. Appellant made efforts to state a cause of
                              waived. Appellant

action by amending his petition twice to state a claim for which Appellees were not

governmentally immune. Following aa hearing,
               immune. Following    hearing, the
                                             the Honorable
                                                 Honorable Janet Leal presiding

over
over the 103rd Judicial
     the 103rd  Judicial District
                         District Court
                                  Court of
                                         of Cameron
                                             Cameron County,
                                                      County, Texas
                                                               Texas granted
                                                                      granted

Appellees’ Plea
Appellees' Plea to
                to the
                   the Jurisdiction.
                       Jurisdiction. In
                                      Inthis
                                         thisAppeal,
                                             Appeal, Appellant
                                                     Appellant has
                                                               has only
                                                                   only contested
                                                                        contested

the Trial
the Trial Court's
          Court’s decision
                  decision in
                           in granting
                              granting the
                                       the Plea
                                           Plea to
                                                to the
                                                    the Jurisdiction
                                                         Jurisdiction based
                                                                      based on
                                                                            on two
                                                                               two

causes
causes of action: inverse
       of action:  inverse condemnation
                            condemnation and pursuant
                                             pursuant to the
                                                         the provisions
                                                             provisions of the

Texas Private Real Property Rights Preservation Act.

             STATEMENT OF ISSUES PRESENTED FOR REVIEW

ISSUE ONE:

                          order granting
                  Court’s order
        The Trial Court's       granting Appellees'
                                         Appellees’ Plea
                                                    Plea to
                                                          to the
                                                              the Jurisdiction
                                                                   Jurisdiction should
                                                                                should

be sustained.

PCD#239050                             2
        A. Standard of Review.

        B. Appellant failed to plead a waiver of sovereign immunity.

        C. Appellant’s claim
        C. Appellant's claim under the Texas
                             under the Texas Private
                                              Private Real
                                                      Real Property
                                                            Property Rights
                                                                      Rights

             Preservation Act is statutorily barred.

           Appellant’s reliance on the
        D. Appellant's             the Texas
                                       Texas Property
                                             Property Code
                                                      Code is
                                                           is misplaced—It
                                                              misplaced—It does

             not provide
             not provide a private
                            private cause
                                     cause of
                                           of action
                                               action ororwaiver
                                                           waiverofofgovernmental
                                                                       governmental

             immunity.

           Appellant’s procedural
        E. Appellant's procedural Due Process Rights,
                                  Due Process             implicated, have been
                                              Rights, if implicated,       been
           satisfied.

           Appellant failed
        F. Appellant  failed to  allege aavalid
                             to allege     validinverse
                                                  inversecondemnation
                                                           condemnation claim,
                                                                         claim,

             governmental immunity
             governmental  immunityapplies,
                                    applies,and
                                             andthe
                                                 thegranting
                                                     grantingofofthe
                                                                  the plea
                                                                      plea to the
                                                                           to the

             jurisdiction should be sustained.

ISSUE TWO:

        Appellant has waived any and all other bases for jurisdiction.

                               STATEMENT OF FACTS

        The City of
        The      of Brownsville,
                    Brownsville, Texas is
                                       is aa municipality
                                             municipality incorporated
                                                           incorporated under
                                                                        under the

laws of the
        the State
            State of
                  of Texas. (2nd SCR 4) The
                     Texas. (2nd        ThePublic
                                            Public Utilities
                                                   Utilities Board
                                                             Board of
                                                                   of Brownsville
                                                                      Brownsville

       water and electric
is the water     electric utility
                          utility of
                                  of the
                                     the City
                                         City of
                                              of Brownsville.    is managed
                                                 Brownsville. It is managed by a

Board of
Board of Directors
         Directorsappointed
                   appointedbybythe
                                  theCity
                                      CityofofBrownsville.
                                               Brownsville.(CR
                                                            (CR4)4) Both
                                                                    Both are
                                                                         are

political subdivisions under the
                             the laws
                                 laws of
                                      of the
                                          the State
                                              State of
                                                    of Texas. (2nd SCR 4)
                                                       Texas. (2nd




PCD#239050                                3
           connection with
        In connection          governmental function
                      with its governmental function of providing water
                                                     of providing water to
                                                                        to the

citizens
citizens of Brownsville, Appellees
         of Brownsville,           have utilized
                         Appelleeshave  utilized the
                                                  the city’s unique network
                                                      city's unique network of
                                                                            of

resacas to use and store water and collect runoff from storms, and thereby help to

prevent flooding
prevent flooding of
                 of the
                     the city.            Asaaresult
                         city. (CR 21-22) As   resultof
                                                      ofsediment,
                                                         sediment, trash
                                                                    trash and
                                                                          and other

debris building up in the resacas, Appellees began an effort to clean, maintain and

restore the resacas
restore     resacas by implementing
                       implementing the
                                    the Resaca
                                        Resaca Restoration
                                               RestorationProject.
                                                           Project. (CR 21-22)

            involved a cleaning and dredging
The Project involved                dredging process which allowed debris that

    collected in
had collected in the
                 the resacas
                     resacas to
                              to be
                                 be removed.            Appellees instituted
                                    removed. (CR 21-22) Appellees  instituted this

project to accomplish
project    accomplish a number
                        number of tasks but the principal
                                                principal reasons
                                                          reasons were to create
                                                                          create

additional water capacity
                 capacity and
                          and help
                              help prevent
                                   prevent flooding.
                                            flooding. (CR 21-22)

        Dennis Ambrose
        Dennis Ambrose (hereinafter
                       (hereinafter“Plaintiff”
                                    "Plaintiff' or “Appellant”) was
                                                or "Appellant") was aware
                                                                    aware of

Appellees’ plans to clean
Appellees'          clean and
                          and maintain
                              maintain the
                                        the resacas
                                             resacas through
                                                      through aa dredging
                                                                 dredging process.
                                                                          process.

(CR 8-10)
(CR 8-10) On
           OnMarch
              March18,
                    18,2013,
                        2013,Appellant,
                              Appellant, through
                                          through his
                                                  his counsel,
                                                      counsel, sent letters
                                                                    letters to

Appellees objecting
          objecting to
                    to the
                       the Resaca
                           Resaca Restoration
                                  Restoration Project
                                              Project planned
                                                      plannedby
                                                              byAppellees.
                                                                Appellees. (CR

8-10)

        On November 4,
        On November    2013 Appellant
                    4, 2013 Appellant filed suit and
                                      filed suit and obtained
                                                     obtained an ex parte
                                                                    parte

Temporary Restraining
Temporary RestrainingOrder.
                      Order. (CR
                             (CR 4,
                                 4, 31)
                                    31) InInhis
                                             hisOriginal
                                                 OriginalPetition
                                                          Petition Appellant
                                                                    Appellant

alleged that
alleged      on or
        that on  or about
                     about October
                            October 2013,
                                     2013, Appellees
                                            Appellees trespassed
                                                       trespassed on
                                                                  on Appellant's
                                                                     Appellant’s

property by placing equipment on his property and dredging his resaca without his

consent. (CR
          (CR 5)
              5) Appellant
                  Appellantalleged
                            allegedthat
                                    thatthe
                                         thetrespass
                                             trespass included
                                                       included the
                                                                 the unlawful
                                                                     unlawful entry on

his property by employees
                employees of
                          of Appellees
                             Appelleesand
                                       andplacing
                                           placingequipment.
                                                   equipment. (CR
                                                              (CR 5)
                                                                  5) Appellant
PCD#239050                             4
alleged that
alleged      these acts constituted
        that these      constituted aa trespass
                                       trespass and
                                                and that these acts were carried out

willfully, maliciously,
willfully, maliciously,and
                        andoppressively
                            oppressivelyresulting in in
                                          resulting   damages.
                                                        damages.(CR
                                                                 (CR5)5) The
                                                                         The

purported trespass
purported trespass is  on “the
                    is on "the water
                               water portion”
                                     portion" of
                                              of Appellant’s
                                                 Appellant's property. (Appellant’s
                                                             property. (Appellant's

Brief 9-10)
Brief 9-10) Appellant
             Appellant claimed
                        claimed that
                                 that these
                                       these alleged
                                              alleged events
                                                      events caused
                                                             caused him to suffer
                                                                            suffer

mental anguish
mental anguish and prayed
                   prayed for
                           for unspecified
                                unspecified damages,
                                             damages, exemplary
                                                      exemplary damages
                                                                damages and
                                                                        and

attorneys’ fees in addition to injunctive
attorneys'                     injunctive relief.
                                           relief. (CR 5)

         After receiving
         After receiving notice
                         notice of
                                of Appellant’s claims, Appellees answered and filed a
                                   Appellant's claims,

plea to the jurisdiction. After aa hearing,
            jurisdiction. After                             denied Appellant’s
                                   hearing, the Trial Court denied             request
                                                                   Appellant's request

for temporary injunctive
              injunctive relief.         Appellant did
                         relief. (CR 31) Appellant did not
                                                       not appeal
                                                           appeal this decision.

               Appellant amended
         After Appellant amended his
                                 his petition,
                                     petition, (CR      Appellees filed their First
                                               (CR 31), Appellees

Amended Plea
Amended Plea to     Jurisdiction asserting
             to the Jurisdiction asserting that
                                           that Appellant’s
                                                Appellant's cause
                                                            cause of
                                                                  of action for

trespass is barred by sovereign or governmental immunity; Appellant had failed to

plead a basis for a waiver of immunity; and Appellant had failed to provide timely

notice of claim.
          claim. (CR 15-18).

         Appellant filed
         Appellant           Second Amended
                   filed his Second Amended Original
                                            Original Petition
                                                     Petition on December
                                                                 December 10,

2014 in which he again asserted a cause of action for trespass, but did not allege
                                                                            allege

any factual basis for a waiver
                        waiver of Appellees’ sovereign
                               of Appellees'  sovereign immunity
                                                        immunity for his
                                                                     his trespass
                                                                          trespass

allegation. (CR
allegation.     26-29)1. Appellant
            (CR 26-29)1.  Appellant included
                                     included new
                                              new allegations
                                                  allegations in paragraph
                                                                 paragraph 2.4 of

                   Petition that
his Second Amended Petition that Defendants
                                 Defendants violated
                                            violated “his rights under
                                                     "his rights under the
                                                                       the Texas
                                                                           Texas

Constitution Article 1, Section 19, in violation of title 42 USC section 1983, and in

1
    See Appendix attached hereto.
PCD#239050                              5
violation of his rights
violation        rights under
                        under the
                              the Texas
                                  Texas Private
                                        Private Real
                                                Real Property
                                                     Property Rights
                                                              Rights Preservation
                                                                     Preservation

      Plaintiff would
Act. Plaintiff  would further
                       further show
                               show that
                                     that the
                                           the actions
                                               actions of
                                                       of these
                                                           these Defendants
                                                                 Defendants violated his

rights under
rights under 11.035
             11.035 of
                    of the
                       the Texas
                           Texas Water
                                 Water Code,
                                       Code, providing
                                             providingthat.”
                                                       that."[sic].
                                                              [sic]. (CR 27)

Appellant later
Appellant  later makes
                 makes aa passing
                          passing allegation
                                  allegation in  Paragraph 3.1
                                              in Paragraph 3.1 of his Second
                                                               of his  Second

Amended Petition
Amended Petition that Appellees failed
                 that Appellees failed to properly condemn
                                                   condemn Plaintiff's property
                                                           Plaintiff’s property

and violated Sections 21.012 through
                             through 21.016
                                     21.016 of
                                            of the
                                                the Texas
                                                    Texas Property
                                                          PropertyCode.
                                                                   Code. (CR 28)

        The basis
        The basis that
                   that Appellant
                         Appellant alleged
                                    alleged supports
                                             supports aa waiver
                                                          waiver ofofgovernmental
                                                                      governmental

immunity is
immunity    Chapter 2007.002
         is Chapter 2007.002 of     Texas Government
                             of the Texas Government Code,
                                                     Code, 11.035
                                                           11.035 of the
                                                                  of the

Texas Water
      Water Code
            Code and
                 and aa passing
                        passing reference
                                 referencetotoaagovernmental
                                                 governmentaltaking.
                                                              taking.(CR
                                                                      (CR28)
                                                                          28) In

Appellant’s four
Appellant's four page
                 page pleading,
                      pleading, he does not set forth any facts to support any cause

of action other than
                than the
                     the original
                         original cause
                                  cause of
                                        of action
                                           action that
                                                   that he
                                                        he asserted
                                                           assertedfor
                                                                    for trespass.
                                                                         trespass. (CR

       Ofsignificance
27-28) Of significance to
                        to this
                            this appeal,
                                 appeal, Appellant
                                         Appellant did not plead
                                                           plead any facts to support

the required elements
             elements of
                      of a taking  claim, including
                           taking claim,   including the
                                                      the most
                                                          most fundamental
                                                               fundamental of those

elements-- that some property
                     property of
                              of Appellant
                                 Appellant was
                                           was taken
                                                taken by
                                                      by Appellees.
                                                         Appellees. (CR 27-28)

        Appellees filed their Second Amended Plea to the Jurisdiction on December

16, 2014
16, 2014 asserting
         asserting that
                   that the
                        the court
                            court lacked
                                   lacked jurisdiction
                                           jurisdiction to
                                                        to hear
                                                           hear Appellant's
                                                                Appellant’s claims
                                                                            claims

because Appellant's
because Appellant’s pleadings
                    pleadings fail
                              fail to
                                   to allege
                                      allege or
                                             or attempt
                                                attempt to
                                                        to establish
                                                           establish a basis to waive

sovereign immunity on
                   on the
                      the part
                          part of
                               of Appellees. (2nd SCR 4)
                                  Appellees. (211"

        Following aa hearing,
        Following    hearing, the Trial Court
                              the Trial Court granted
                                              granted Appellees’
                                                      Appellees' Plea
                                                                 Plea to  the
                                                                      to the

Jurisdiction by its order
                    order on
                          on December
                             December 29,
                                      29, 2014.
                                          2014. (CR 30)



PCD#239050                              6
                       SUMMARY OF THE ARGUMENT

        This suit
        This suit arises
                  arises out
                         out of
                             of the
                                 the Appellees'
                                     Appellees’ efforts
                                                efforts to
                                                         to clean
                                                             clean and
                                                                    and maintain
                                                                        maintain the
                                                                                 the

resacas in
resacas    Brownsville to
        in Brownsville     allow the resacas
                        to allow     resacas to hold
                                                hold more
                                                     more water,
                                                          water, protecting
                                                                 protecting its

residents against
residents against flooding. Appellant opposed
                  flooding. Appellant opposed this project and began by writing
                                                                        writing

letters expressing
letters expressing his
                   his objection. When the
                       objection. When  theletters
                                            letters were
                                                     wereunsuccessful,
                                                          unsuccessful, Appellant
                                                                        Appellant

filed suit for trespass and obtained an ex parte temporary
                                                 temporary restraining
                                                           restraining order.
                                                                       order. After

receiving notice of
receiving notice    Appellant’s petition,
                 of Appellant's petition, Appellees
                                          Appellees opposed
                                                    opposed the injunctive
                                                                injunctive relief

sought by
sought    Appellant and
       by Appellant and the Trial Court
                        the Trial Court refused
                                        refused to enter aa temporary
                                                to enter     temporary or
                                                                       or

preliminary injunction.
preliminary             Appellees contested
            injunction. Appellees contested the Trial Court's
                                            the Trial Court’s jurisdiction
                                                               jurisdiction over
                                                                            over

Appellant’s suit
Appellant's suit because
                 because Appellant failed to plead jurisdictional
                                                   jurisdictional facts
                                                                  facts or a cause of

action that would provide
                  provide the
                          the Trial
                              Trial Court
                                    Court with
                                          with jurisdiction. Appellant now claims
                                               jurisdiction. Appellant

         suit is
that his suit is premised
                 premised on inverse
                              inverse condemnation,
                                      condemnation, but
                                                    but yet
                                                        yet he failed in the Trial
                                                            he failed        Trial

Court to identify anything taken from him by Appellees, much less a compensable

taking—a fundamental
taking—a fundamentalprerequisite
                     prerequisitetotoany
                                      anyclaim
                                          claim for
                                                 for inverse
                                                     inverse condemnation.
                                                             condemnation. In

reality, Appellant’s
reality,             complaint remains as it began-- an action for trespass which is
         Appellant's complaint

barred by the Texas Tort Claims Act.

        In seeming
           seeming recognition
                   recognition that
                               that the Trial Court
                                    the Trial Court lacks
                                                     lacks jurisdiction
                                                            jurisdiction over
                                                                         over his
                                                                              his

trespass cause
trespass cause of action,
                  action, Appellant
                          Appellant dropped
                                    dropped his trespass claims
                                            his trespass claims in his
                                                                   his appellate
                                                                       appellate

                                                                           “sounding
briefing but has instead tried to disguise his claims by labelling them as "sounding

in inverse condemnation.”  In the
           condemnation." In   the end,
                                   end, Appellant
                                        Appellant was
                                                  was unable
                                                      unable to articulate
                                                                articulate a cause

of action for inverse condemnation
                      condemnation in the Trial Court and still has not articulated,
                                                                        articulated,
PCD#239050                             7
and cannot articulate,
           articulate, a basis
                         basis for
                               for jurisdiction. Given the absence of a pleading that
                                   jurisdiction. Given

justifies Appellees'
justifies Appellees’ immunity
                     immunity being
                              being waived,
                                    waived, the
                                            the Trial
                                                Trial Court lacked jurisdiction and

correctly granted Appellees’
correctly granted Appellees' Plea
                             Plea to the Jurisdiction,
                                  to the  Jurisdiction, which
                                                        which this Court
                                                                   Court should
                                                                          should

uphold.

                                      ARGUMENT

I.      The  trial court's
        The trial  court’s order
                           order granting
                                 granting Appellees'
                                          Appellees’ Plea
                                                     Plea to
                                                          to the
                                                              the Jurisdiction
                                                                   Jurisdiction
        should be sustained.

A.      Standard of Review

        The granting
        The granting or
                     or denial
                        denial of
                               of aa Trial
                                     Trial Court’s ruling on
                                           Court's ruling on aa plea
                                                                plea to
                                                                     to the
                                                                        the jurisdiction
                                                                            jurisdiction is
                                                                                         is

 reviewed by the appellate court under a de novo standard of review. Tex. Natural

 Res. Conserv.
 Res. Conserv. Comm
               Comm’n
                    'n v.
                       v. IT-Davey,
                          IT-Davey, 74 S.W.3d
                                       S.W.3d 849,
                                              849, 855
                                                   855 (Tex.
                                                       (Tex. 2002).
                                                             2002). To resolve

 any jurisdictional issues, this Court can consider the pleadings and other relevant

 evidence. City of San Antonio v. Summerglen
                                  Summerglen Property Owners Ass’n
                                             Property Owners       Inc., 185
                                                             Ass'n Inc.,

 S.W.3d 74 (Tex. App.--San Antonio, 2005, pet. denied); Bland Indep. Sch. Dist.

 v. Blue, 34 S.W. 3d 547, 554 (Tex.
                              (Tex. 2000).
                                    2000). In
                                           In cases
                                              cases in
                                                    in which
                                                       which the only issue on the

 plea to
 plea to the
         the jurisdiction
             jurisdiction involves
                          involves the
                                   the individual
                                       individual property
                                                  property owners’
                                                           owners' standing
                                                                   standing to
                                                                            to bring

 their claims,
 their claims, the court may
               the court may not
                             not consider
                                  consider the
                                           the merits
                                               merits of
                                                      of the
                                                          the underlying
                                                               underlying suit.
                                                                           suit.

 Summerglen, 185 S.W.3d at 83; City of San Antonio v. Hardee, 70 S.W. 3d 207,

 212 (Tex. App.--San Antonio 2001, no pet.).




PCD#239050                                8
       Appellant Failed
    B. Appellant Failed To Plead A Waiver Of Sovereign Immunity

        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 asserted claims have merit. Bland

Indep. School
Indep. School Dist.    Blue, 34 S.W.3d
              Dist. v. Blue,    S.W.3d 547,
                                       547, 554 (Tex. 2000).
                                            554 (Tex. 2000). AAgovernmental
                                                                governmental

unit’s sovereign
unit's  sovereign immunity
                  immunity deprives
                           deprives a trial
                                      trial court
                                            court of
                                                  of subject
                                                      subject matter
                                                              matter jurisdiction.
                                                                      jurisdiction.

Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).

Governmental
Governmental immunity,
              immunity, aa derivation
                           derivation of sovereign
                                         sovereign immunity,
                                                    immunity, shields
                                                              shields political
                                                                      political

subdivisions of
subdivisions of the State from suit and
                the State           and liability.
                                         liability. Tooke
                                                    Tooke v.         Mexia, 197
                                                          v. City of Mexia,

S.W.3d 325, 332 (Tex. 2006). Because immunity
                      2006). Because immunity from suit deprives a trial court of

jurisdiction, aa governmental
jurisdiction,    governmental entity
                               entityproperly
                                      properlyasserts
                                               assertsimmunity
                                                       immunityininaa plea
                                                                      plea to the
                                                                           to the

jurisdiction. Miranda, 133 S.W.3d at
                       133 S.W.3d at 225-26. The plaintiff
                                     225-26. The plaintiff bears
                                                           bears the burden
                                                                     burden of

alleging facts
alleging       affirmatively proving
         facts affirmatively  provingthat
                                      that the
                                            the trial court has
                                                trial court has subject
                                                                 subject matter
                                                                         matter

jurisdiction. Texas
              Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.

       While the
2001). While  the claims
                   claims may
                          may form
                              form the
                                    the context
                                        context in
                                                in which
                                                   which the
                                                         the dilatory
                                                             dilatory plea is raised,

the plea should be decided without delving into the merits of the case. Bland, 34

S.W.3d at 554.

        Appellant must
        Appellant must have
                       have alleged
                            alleged sufficient
                                    sufficient facts
                                                facts to
                                                       to invoke
                                                          invoke the Trial Court's
                                                                 the Trial Court’s

jurisdiction which
jurisdiction which Appellant
                   Appellant acknowledged
                             acknowledged in
                                           in his Brief, “In
                                              his Brief, "In aa challenge
                                                                challenge solely
                                                                          solely to
                                                                                 to

the pleadings, as here, this Honorable Court must decide if the plaintiff has alleged

sufficient jurisdictional
sufficient jurisdictional facts
                          facts to
                                to show the trial
                                   show the trial court's
                                                  court’s subject-matter
                                                           subject-matter jurisdiction,
                                                                           jurisdiction,
PCD#239050                              9
using a liberal
using   liberal construction
                construction inin favor
                                   favor of
                                         of the
                                             the plaintiff.” (Appellant’s Brief
                                                 plaintiff." (Appellant's Brief at
                                                                                at 11,
                                                                                   11,

citing Miranda, 133 S.W.3d at 226.)

        Curiously, later in his Brief, Appellant seems to have confused the pleading

responsibilities of the
responsibilities    the respective
                        respective parties
                                   parties in
                                            in this
                                                this litigation.
                                                      litigation. In his Brief, he criticizes

Appellees for
Appellees for not pleading that
              not pleading      Appellant’s property
                           that Appellant's property was
                                                     was not damaged by
                                                         not damaged    the
                                                                     by the

resaca project.
resaca           (Appellant’s Brief
       project. (Appellant's  Brief at
                                    at 17).
                                       17). While
                                            WhileAppellees
                                                  Appellees contest
                                                             contest that
                                                                      that Appellant
                                                                           Appellant

sustained any
sustained any damage
              damage to his property,
                            property, Appellees
                                      Appellees had
                                                had no
                                                    no obligation
                                                       obligation to
                                                                  to file such a

pleading, or
pleading, or make
             make such
                  such an
                       an allegation. Appellees were
                          allegation. Appellees were the defendants
                                                         defendants in the suit

responding to
responding to the allegations
                  allegations of
                              of Appellant/Plaintiff.    Appellant had alleged that
                                 Appellant/Plaintiff. If Appellant

                                 significantly, if he had
he suffered some damage, or more significantly,       had alleged
                                                          alleged that
                                                                  that Appellees
                                                                       Appellees

had taken his property,
              property, Appellees
                        Appellees would have responded.
                                  would have  responded. A
                                                         A review
                                                           review of
                                                                  of Appellant’s
                                                                     Appellant's

Second
Second Amended
       Amended Petition
               Petition makes
                        makes abundantly
                              abundantlyclear
                                         clear that
                                                that he
                                                     he did
                                                        did not
                                                            not make such an

            Rather, Appellant
allegation. Rather, Appellant failed
                              failed to
                                     to meet
                                        meet his
                                             his obligations
                                                 obligations to plead facts sufficient

to invoke
to invoke the
          the Court’s jurisdiction which
              Court's jurisdiction which he
                                         he acknowledged
                                            acknowledged was required of him.

        Governmental
        Governmentalentities,
                     entities,like
                               like Appellees,
                                    Appellees,are
                                               are immune
                                                   immune from
                                                          from suit unless the
                                                               suit unless

Texas Legislature
Texas Legislature has
                  has expressly
                      expressly consented
                                consentedtoto suit and thereby
                                              suit and  thereby waived
                                                                waived the
                                                                        the

governmental entity’s
governmental          immunity. City of Fort Worth v. Crockett, 142 S.W.3d 550,
             entity's immunity.

552 (Tex. App. -- Fort Worth 2004, pet. denied). Absent consent to suit, the trial

court lacks jurisdiction.
            jurisdiction. Id. The Appellant
                                  Appellant in this proceeding
                                                    proceeding failed
                                                               failed to meet the

standard for waiver of immunity.



PCD#239050                               10
       Appellant’s Claim
    C. Appellant's  Claim Under
                            Under The    Texas Private
                                   The Texas   Private Real
                                                       Real Property
                                                            Property Rights
                                                                     Rights
       Preservation Act Is Statutorily Barred.

        Appellant alleges
        Appellant alleges the
                           the Appellees
                               Appellees violated
                                         violated his
                                                  his rights
                                                      rights under
                                                             under the     Texas
                                                                   the the Texas

Private
Private Real
        Real Property
             Property Rights
                      Rights Preservation
                             Preservation Act
                                          Act (“the Act"), which
                                              ("the Act”), which can
                                                                 can be found in
                                                                     be found in

Texas Government Code 2007.002 et. seq. (CR 27-28) citing to Texas Government

Code 2007.002
     2007.002 as authority
                 authority that Appellees' immunity from
                                Appellees’ immunity from suit
                                                         suit has
                                                              has been
                                                                  been waived.
                                                                       waived.

While this provision
           provision does
                     does in fact waive immunity
                                        immunity from
                                                 from suit in some instances, it

does not
does not here.
         here. Appellant
                Appellant has
                           hasnot
                               notmet
                                   metthe
                                        thespecific
                                             specificstatutory
                                                       statutory requirements
                                                                  requirements for
                                                                               for

jurisdiction under
jurisdiction under this
                   this statutory
                        statutory scheme.  Any proceeding
                                   scheme. Any proceeding under
                                                          under the Act must be

filed
filed with
      with its appropriate tribunal
           its appropriate tribunal ‘not
                                     'not later
                                          later than
                                                than the 180th day
                                                     the 180th day after
                                                                   after the
                                                                         the date
                                                                             date the
                                                                                  the

private real property
private      property owner
                      owner knew
                            knew or should
                                    should have
                                           have known
                                                known that
                                                       that the
                                                             the governmental
                                                                  governmental

       restricted or
action restricted or limited
                     limited the
                             the owner's
                                 owner's right
                                         right in
                                               in the
                                                  the private
                                                      private real
                                                              real property.’”
                                                                   property.'" State v.

BP Am. Prod. Co., 290 S.W.3d 345, 348 (Tex.
                                      (Tex. App.--Austin
                                            App.--Austin 2009, pet. denied)
                                                                    denied)

(quoting TEX. GOV'T.
(quoting TEX. GOV'T. CODE
                     CODE §§
                          §§ 2007.021(b),  .022(b)). The
                             2007.021(b), .022(b)).  The Legislature
                                                         Legislature only
                                                                     only

waived immunity
       immunity from
                from suit
                     suit to the extent provided for in the Act;
                                                            Act; the
                                                                 the requirement
                                                                     requirement

that suit
that suit against
          against aa political
                      political subdivision
                                subdivision be
                                            be timely
                                               timely filed
                                                      filed in district court
                                                            in district court is

jurisdictional. Id. §§ 2007.004(a), .021(b); BP Am. Prod. Co., 290 S.W.3d at 367

(holding timely
(holding timely filing
                filing in proper district court
                                          court is
                                                is aa jurisdictional
                                                       jurisdictional requirement
                                                                       requirement for

suing a political subdivision pursuant to the Act).

        Appellant filed
        Appellant           Second Amended
                  filed his Second Amended Original
                                           Original Petition
                                                    Petition on December
                                                                December 10,

2014, in
2014, in which
         which he
               he first
                  first alleged
                        allegedhis
                                hiscause
                                    causeofofaction
                                              actionunder
                                                     underthe
                                                            theAct.
                                                                Act. (CR
                                                                      (CR27) His
                                                                         27) His

PCD#239050                             11
Second
Second Amended
       Amended Original
               Original Petition
                        Petition isis complaining
                                      complaining of
                                                  of actions
                                                     actions and events that
                                                             and events that

occurred
occurred on or about September
                     September 2013,
                               2013, which
                                     which conservatively
                                           conservatively isis 436
                                                               436 days
                                                                   days from the

date in which
date    which Appellant
              Appellant brought
                        broughtforth
                                forthhis
                                      his claims
                                           claimspursuant
                                                  pursuanttotothe
                                                               theAct.
                                                                  Act. (CR 27)

Therefore, taking
Therefore,        Appellant's allegations
           taking Appellant’s allegations as
                                          as true
                                             true as to his claim under the Act and

                                 has not
the date of filing his claim, he has not met
                                         met the
                                              the jurisdictional
                                                   jurisdictional requirements for suit,

and any and all claims under the Act are barred.

D.      Appellant’s Reliance on the Texas Property Code is Misplaced—It Does
        Appellant's
            Provide a Private
        Not Provide     Private Cause
                                Cause Of
                                       Of Action
                                          Action or
                                                 or Waiver
                                                    Waiver of
                                                            ofGovernmental
                                                                Governmental
        Immunity.

        Appellant in his Second
                  in his Second Amended
                                Amended Original
                                        Original Petition
                                                 Petition provides
                                                          provides for
                                                                   for aa "kitchen
                                                                          “kitchen

sink” approach
sink" approach to pleading, attempting
               to pleading, attempting to
                                        to “throw
                                           "throw in” many state
                                                  in" many state and
                                                                 and federal
                                                                      federal

statutes that
statutes that relate
              relate to
                     to condemnation. Appellant cites to Chapter
                        condemnation. Appellant          Chapter 21 of the
                                                                       the Texas
                                                                           Texas

Property
Property Code
         Code which
              which relates
                    relates solely
                            solely to
                                   to aa governmental
                                         governmental entity’s ability to
                                                      entity's ability to exercise
                                                                          exercise

eminent
eminent domain
        domain authority,
               authority,and
                          anddoes
                              doesnot
                                  not provide
                                      providefor
                                              for aa private
                                                     private right
                                                             right or cause of
                                                                   or cause

action, and therefore
action,     therefore is insufficient
                         insufficient in
                                      in providing
                                         providing subject
                                                   subject matter
                                                           matter jurisdiction.
                                                                   jurisdiction. (CR

28)

        Section 21.012 of the Texas Property Code provides the statutory authority

and procedural
and procedural guidelines
               guidelines for
                          for entities
                              entities that
                                        thatpossess
                                            possess“eminent
                                                    "eminentdomain
                                                             domainauthority.”
                                                                    authority." “If
                                                                                "If

an entity with eminent domain authority wants
                                        wants to acquire real property for public

use but
use but is
        is unable
           unable to
                  to agree
                     agree with
                           with the
                                 the owner
                                     owner of
                                           of the
                                               the property
                                                    property on the
                                                                 the amount
                                                                     amount of

damages, the entity may begin a condemnation
damages,                        condemnation proceeding
                                             proceeding by
                                                        by filing
                                                           filing a petition in

the proper
the proper court.” Tex. Prop.
           court." Tex. Prop. Code § 21.012. There
                                             There is
                                                    is no
                                                       no private
                                                          private right or cause of
PCD#239050                             12
action under Chapter 21 of the Texas Property Code that provides an individual the

authority to institute suit to force
                               force condemnation
                                     condemnation proceedings.
                                                  proceedings. Appellant lacks such

authority and lacks standing to file suit based upon these statutes.

        When bringing
        When bringing suit against a governmental
                      suit against   governmental entity,
                                                  entity, the plaintiff has
                                                          the plaintiff     the
                                                                        has the

burden to affirmatively plead a valid waiver of immunity from suit in order to vest

the trial court with jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d

540 (Tex.
    (Tex. 2003). Although the
          2003). Although  the allegations
                               allegations in the Appellant's pleadings are
                                                  Appellant’s pleadings     to be
                                                                        are to be

liberally construed,
          construed, the Appellant’s live pleading
                         Appellant's live pleading must demonstrate, not only from

the facts alleged, but also from references to statutes or other provisions of law,

that the
that the defendant's
         defendant’s governmental
                     governmental immunity
                                  immunity from
                                           from suit has been waived.
                                                              waived. City
                                                                      City of

Weslaco v. Cantu, 2004 WL 210790
                          210790 (Tex.
                                 (Tex. App. – Corpus
                                       App. — Corpus Christi,
                                                     Christi, 2004,
                                                              2004, no pet.);

Leatherwood v. Prairie View
Leatherwood            View A&M
                            A&M University,
                                University, 2004 WL
                                                 WL 253275
                                                    253275 (Tex.
                                                            (Tex.App.
                                                                  App.—–

        [1st Dist.], 2004, no pet.); City of Canyon v. McBroom,
Houston [1st                                           McBroom, 121 S.W.3d 410

(Tex. App. – Amarillo
      App. — Amarillo 2003,
                      2003, no
                            no pet.); Hardin County Community Supervision and

Corrections
Corrections Department
            Department v. Sullivan, 106 S.W.3d 186,
                                               186, (Tex.
                                                     (Tex. App.
                                                           App.—– Austin 2003,

pet. denied). In
               In the
                   the present
                       present case,
                               case, Appellant's pleadings fail
                                     Appellant’s pleadings fail to
                                                                to provide
                                                                   provide a sufficient
                                                                             sufficient

statutory or other legal
statutory          legal provision
                         provision which
                                   which affirmatively
                                         affirmatively establishes
                                                       establishes any
                                                                   any waiver
                                                                       waiver of

           immunity from
Appellees’ immunity
Appellees'          from suit.
                         suit.




PCD#239050                             13
E.      Appellant’s Procedural
        Appellant's Procedural Due
                               Due Process Rights, If
                                   Process Rights, If Implicated,
                                                      Implicated, Have
                                                                  Have Been
                                                                       Been

        Satisfied.

        Appellant further contends that, by failing to follow the procedures set forth

in Chapter 21 of the Texas Property Code, Appellees have violated his Procedural

Due Process
Due Process rights
            rights under
                   under Article
                         Article I, Section 19
                                 I, Section 19 of
                                                of the
                                                    theTexas
                                                        TexasConstitution.
                                                              Constitution.

(Appellant's Brief at 13-15)
(Appellant’s Brief    13–15) The
                             The Texas Constitution provides that “[n]o
                                 Texas Constitution               "[n]o citizen
                                                                        citizen of
                                                                                of

this State shall be deprived of life, liberty, property, privileges or immunities, or in

any manner
any manner disfranchised,
           disfranchised, except
                          except by
                                 by the
                                     the due
                                         due course
                                             courseof
                                                    ofthe
                                                       thelaw
                                                           lawof
                                                              ofthe
                                                                 theland.”  TEX.
                                                                     land." TEX.

CONST.
CONST. Art.
       Art. I,I, §§ 19.
                    19. Chapter
                         Chapter 21
                                  21 of
                                      ofthe
                                         theTexas
                                             TexasProperty
                                                   Property Code
                                                            Code sets
                                                                 sets forth
                                                                      forth the
                                                                            the

procedural safeguards
procedural safeguardsthe
                      the government
                          governmentmust
                                     mustfollow
                                          followin
                                                 in exercise
                                                    exercise its powers of
                                                             its powers

eminent domain. Tex.
                Tex. Prop.
                     Prop. Code
                           Code § 21.011(2015).

        Here, however,
        Here, however, Appellees
                       Appellees never
                                 never sought
                                       sought to condemn or
                                              to condemn    take Appellant's
                                                         or take Appellant’s

property. Rather,
property.  Rather, the
                    the City
                         City was
                               wasmerely
                                   merely cleaning
                                           cleaning and
                                                     and restoring
                                                          restoring the
                                                                     the resacas.
                                                                          resacas.

Accordingly, Appellees
Accordingly, Appellees had
                       had no
                           no reason
                              reason or obligation
                                        obligation to follow the procedures
                                                                 procedures set

forth in Chapter 21 of the Texas
                           Texas Property
                                 Property Code.
                                          Code. Tex. Prop. Code § 21.011, et. seq.

        Turning to Article I, § 19 of the
                                      the Texas
                                          Texas Constitution,
                                                Constitution, Appellant has failed to

satisfy his burden of first
satisfy               first identifying
                             identifying aa property
                                            property interest
                                                      interest warranting
                                                               warranting Due Process
                                                                              Process

protection. AADue
              Due Process
                  Process inquiry
                           inquiry requires
                                   requires aa two-part
                                               two-part analysis:
                                                        analysis: (1) the Court must

determine whether
determine whether Appellant
                  Appellant has
                            has aa liberty
                                   liberty or property interest
                                           or property interest that
                                                                that is entitled
                                                                        entitled to



PCD#239050                             14
procedural due
procedural due process
               process protection;
                       protection;and
                                   and (2)
                                        (2) ifif so, what process
                                                 so, what process is due. Univ.
                                                                          Univ. of

Texas Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995).

        In Appellant's
        In Appellant’s Second
                       Second Amended
                              Amended Petition,
                                      Petition, he
                                                he did
                                                   did not
                                                       not identify
                                                           identify the
                                                                    the deprivation
                                                                        deprivation

of property
   property he sought to vindicate.
            he sought    vindicate. His
                                     Hisargument
                                         argument before
                                                   before this
                                                           this Court
                                                                 Court consists
                                                                        consists

entirely
entirely of describing the
         of describing     procedures established
                       the procedures establishedby
                                                  by Chapter
                                                     Chapter 21
                                                             21 of     Texas
                                                                of the Texas

Property
Property Code
         Code for  the exercise
              for the   exercise of
                                  of eminent
                                      eminent domain
                                               domain by
                                                       bygovernment
                                                          government entities.
                                                                      entities.

(Appellant's Brief at 13-15)
(Appellant’s Brief    13–15) He
                              Hepresumes
                                 presumesthat
                                          thatAppellees
                                              Appellees were
                                                        were obligated
                                                             obligated to initiate

condemnation
condemnation proceedings
             proceedings under
                         under Chapter
                               Chapter21.  However, Chapter 21 only governs
                                       21. However,

eminent domain procedures
eminent domain procedures when the government
                          when the  government takes
                                                takes private
                                                       private property.
                                                                property.

Appellees have
Appellees have not
               not taken
                   taken Appellant’s property and
                         Appellant's property and Appellant
                                                  Appellant has failed to
                                                            has failed    identify
                                                                       to identify

  compensable taking.
a compensable          Accordingly, Appellant
              taking. Accordingly,  Appellant has not identified
                                              has not  identified aa property
                                                                      property

interest, the
interest, the first        two prong
              first of the two prong test,
                                     test, that
                                           that is
                                                 is worthy
                                                    worthy of
                                                           of procedural
                                                              procedural due
                                                                         due process
                                                                             process

protection and his reliance on Chapter 21 is misplaced.

        Even     the Court
        Even if the   Court found
                             found that
                                    thatprocedural
                                         procedural due
                                                     due process
                                                          process safeguards
                                                                   safeguards were
                                                                              were

triggered, Due
triggered, Due Process
               Process would
                       would be satisfied. Though
                             be satisfied.  Though textually
                                                    textually different,
                                                               different, Texas
                                                                          Texas

courts generally construe the due course of law provision in the same manner as its

federal counterpart, the Due Process Clause. Texas
federal counterpart,                         Texas Workers’ Comp. Comm'n
                                                   Workers' Comp. Comm’n v.
                                                                         v.

Patient Advocates
Patient Advocates of Tex., 136
                           136 S.W.3d
                               S.W.3d 643,
                                      643, 658
                                           658 (Tex.
                                               (Tex. 2004). Under the
                                                     2004). Under the Due
                                                                      Due

Process
Process Clause,
        Clause, technical
                 technicalnotice
                           noticeisis not
                                      not and has never
                                          and has never been
                                                        been the
                                                             the standard
                                                                  standard for
                                                                           for

determining whether
determining whetherdue
                    dueprocess
                        processhas
                                hasbeen
                                    beenafforded
                                         affordedtotoaa litigant.  “Rather, due
                                                         litigant. "Rather, due

process only requires notice, reasonably calculated under the circumstances, to be
PCD#239050                            15
given.” Withrow v. Schou, 13 S.W.3d 37, 40–41
given."                                       (Tex. App.—Houston [14th Dist.]
                                        40-41 (Tex.

1999, pet. denied)
1999,      denied) (citing
                   (citing Peralta
                           Peralta v. Heights Med.
                                   v. Heights Med. Ctr., Inc.,
                                                         Inc., 485
                                                               485 U.S.
                                                                   U.S. 80, 82
                                                                            82

         Actual notice
(1988)). Actual
(1988)).        notice "more
                        “more than
                               than satisfies"
                                     satisfies” due
                                                due process
                                                    process rights.
                                                            rights. United Student

Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1378 (2010).

        Here, by
        Here, by his
                 his own
                     own admission,
                         admission, Appellant
                                    Appellant had
                                              had actual
                                                  actual notice
                                                         notice of the Appellees'
                                                                of the Appellees’

Resaca Restoration
       Restoration Project
                   Project months
                           months before
                                  before itit commenced.
                                              commenced. Appellant states that, on

or about March 18, 2013, he had his attorney
                                    attorney write to Appellees,
                                                      Appellees, objecting to the

operation,
operation, which
           which letters
                  letters were
                          were attached
                               attachedtotohis
                                            hispetition.  (Appellant's Brief
                                                petition. (Appellant’s Brief at 9; CR

       Appellant then
8-10). Appellant  then sought
                       sought and obtained an ex parte temporary
                                                       temporary injunction.
                                                                 injunction. After

                   and aa hearing,
notice to the City and              the Trial
                          hearing, the  Trial Court
                                              Court subsequently
                                                    subsequently denied
                                                                 denied Appellant's
                                                                        Appellant’s

request for aa preliminary
request         preliminary injunction
                             injunction refusing
                                        refusing to enjoin
                                                    enjoin the
                                                            the Resaca
                                                                 Resaca Restoration
                                                                         Restoration

Project.
Project. (Appellant's  Brief at
          (Appellant’s Brief        Denialofofa apreliminary
                             at 9) Denial          preliminary injunction
                                                                injunction can
                                                                           can be
                                                                               be

immediately appealed.
immediately appealed. Tex. Civ. Prac. & Rem. Code
                                             Code § 51.014(a)(4).
                                                    51.014(a)(4). Appellant
                                                                  Appellant

                   Trial Court's
did not appeal the Trial          refusal of
                         Court’s refusal  of the
                                              the preliminary
                                                   preliminary injunction
                                                                injunction and
                                                                           and cannot
                                                                               cannot

now complain that he has not been afforded due process. City of Paris v. Abbott,

360 S.W.3d 567, 582 (Tex.
                    (Tex. App.—Texarkana
                          App.—Texarkana 2011, pet. denied) (concluding that

plaintiff who failed to avail himself of the procedures for appeal and opportunity to

be heard
be heard on
         on the
             the matters
                 matters at
                         at issue
                             issue "cannot
                                    “cannot now
                                             now assert
                                                  assert aaprocedural
                                                            procedural due
                                                                       due process
                                                                            process

takings claim”).
takings claim").

        In short,
        In short, Appellant's
                  Appellant’s procedural
                              procedural due process claim fails for the same reason

         takings claim
that his takings claim fails—he
                       fails—he has
                                has suffered
                                    suffered no
                                             no compensable
                                                compensableharm.
                                                            harm. Even
                                                                  Even if his
PCD#239050                            16
property rights
property rights had
                had been
                    been at issue, Appellant's
                         at issue, Appellant’s actual
                                               actual notice
                                                      notice of Appellees’ actions
                                                             of Appellees' actions

preclude an
preclude an argument
            argument that
                     that Appellant’s
                          Appellant's due process rights were violated.

F. Appellant
F.   AppellantFailed
                FailedToToAllege
                            AllegeA A Valid
                                    Valid   InverseCondemnation
                                          Inverse   Condemnation Claim,
                                                                  Claim,
     Governmental Immunity
     Governmental    Immunity Applies,
                                Applies,And
                                        And The
                                             The Granting
                                                 Granting Of
                                                          Of The
                                                             The Plea To
     The Jurisdiction Should Be Sustained.

        Appellant's pleadings fail
        Appellant’s pleadings         allege aa valid
                              fail to allege     validinverse
                                                       inverse condemnation
                                                                condemnation claim.
                                                                             claim.

Article I, section
Article    section 17
                   17 of
                       of the
                           theTexas
                               TexasConstitution   guarantees that
                                     Constitution guarantees  that "no
                                                                    “no person's
                                                                         person's

         shall be taken,
property shall     taken, damaged,
                          damaged, or destroyed for
                                   or destroyed for or applied to public
                                                    or applied    public use
                                                                         use

without adequatecompensation
without adequate compensationbeing
                              beingmade....”
                                    made...."TEX.
                                             TEX.CONST.
                                                  CONST.art.
                                                         art.I,I, §§ 17
                                                                     17

(emphasis added).
(emphasis         A takings
          added). A  takings cause
                             cause of
                                   of action
                                       action consists
                                              consists of
                                                       of three
                                                           three essential
                                                                 essential elements:
                                                                           elements:

(1) an intentional act by the government under its lawful authority (2) resulting in a

taking of the
taking    the Appellant's
              Appellant's property
                          property (3) for public
                                           public use.
                                                  use. State v. Holland,
                                                                Holland, 221

S.W.3d 639, 643 (Tex.2007).

                                            valid inverse
        When an Appellant does not allege a valid inverse condemnation
                                                          condemnation claim,

as in
   in this
       this case,
             case, governmental
                    governmental immunity
                                 immunity applies,
                                          applies, and           court should
                                                   and the trial court should

grant a plea to the jurisdiction. City of Dallas v. Blanton, 200 S.W.3d 266, 272

(Tex.App.--Dallas 2006,
                  2006, no
                        no pet.). In this
                           pet.). In  this case
                                           case Appellant
                                                Appellant completely failed to plead

an inverse condemnation
           condemnation claim. His four
                        claim. His  four page
                                          page Second
                                               Second Amended
                                                      Amended Petition
                                                              Petition makes
                                                                       makes

only a cursory reference to a claim for inverse condemnation. He only mentioned a

claim             condemnation once
claim for inverse condemnation once in the petition—by
                                           petition—by name    in substance,
                                                       name or in  substance,

when he stated
when           “The conduct
        stated "The conduct of
                            of defendants
                               defendants set
                                          set out
                                              out above
                                                  above constitute
                                                        constitute an
                                                                   an inverse
                                                                       inverse

condemnation
condemnation without
             without just
                     just and
                          and fair
                               fair compensation.” (CR 28)
                                    compensation." (CR
PCD#239050                            17
        To assert aa constitutional
                     constitutional claim for inverse
                                               inverse condemnation
                                                       condemnation a plaintiff must

first and foremost
          foremost allege
                   allege that
                          that his
                               his or
                                   or her
                                      her property
                                          property was
                                                   was taken
                                                        taken by
                                                              by the
                                                                  the government.
                                                                      government. In

this case, Appellant made no allegation or even suggestion that his property was

taken by Appellees.
taken    Appellees. Nowhere
                     Nowhere in
                              in his
                                  hisSecond
                                      SecondAmended
                                             Amended Petition
                                                     Petition does
                                                              does Appellant
                                                                   Appellant

identify any
identify     property taken
         any property taken from
                            from him    Appellees, which
                                 him by Appellees, which is    essential and
                                                         is an essential and

fundamental
fundamentalelement
            elementofofany
                        any cause
                             cause of
                                   of action
                                      action for inverse condemnation.
                                             for inverse               “A
                                                         condemnation. "A

necessary element
necessary element of an inverse condemnation
                                condemnation claim
                                             claim is that private property was

taken for
taken for aa public
             public use.”
                    use." Smith v. City of League City, 338 S.W.3d 114 (Tex. App.--

Houston [14th Dist.] 2011,
                     2011, no
                           no pet.). “To prove
                              pet.). "To prove standing,
                                               standing, aa party
                                                            party must
                                                                  must demonstrate
                                                                       demonstrate

that he
that he 'possesses
        ‘possesses an
                   an interest
                       interest in
                                in aa conflict
                                      conflict distinct
                                               distinct from
                                                        from that
                                                             that of
                                                                  of the
                                                                     the general
                                                                         general public,
                                                                                 public,

such that that defendant's
               defendant's actions havecaused
                           actionshave  causedthe
                                               theplaintiff
                                                   plaintiffsome
                                                             someparticular
                                                                  particularinjury.’”
                                                                              injury.'

Smith v. City of League
Smith            League City,
                        City, 338 S.W.3d 114, 124
                                              124 (Tex.
                                                   (Tex. App.—Houston [14th
                                                         App.—Houston [14th

Dist.] 2014,
Dist.] 2014, no
              nopetition)(quoting
                 petition)(quoting Williams
                                   Williams v.  Lara, 52
                                            v. Lara,     S.W.3d 171,
                                                      52 S.W.3d 171, 178
                                                                     178

(Tex.2001)).  “Alandowner
(Tex.2001)). "A  landowner suffers
                            suffers no
                                    no compensable
                                        compensable injury
                                                     injury where
                                                            where the
                                                                  the government
                                                                      government

        physically appropriated,
has not physically appropriated, denied
                                 denied access to, or otherwise
                                                      otherwise directly
                                                                directly restricted
                                                                         restricted

the use
the use of
        of the
           the landowner's
               landowner's property."
                           property.” Id. (citing Concerned Cmty. Involved Dev.,
                                                                           Dev.,

Inc. v. City
Inc.    City of
             of Houston,
                Houston, 209 S.W.3d
                             S.W.3d 666,
                                    666, 670
                                         670 (Tex.App.-Houston
                                              (Tex.App.-Houston [14th Dist.]
                                                                      Dist.]

                     “Standing is
2006, pet. Denied)). "Standing  is aa question
                                      question of
                                               of law
                                                  law we
                                                      we determine
                                                         determine de
                                                                   de novo.” Id.
                                                                      novo." Id.

        In this case, Appellees were cleaning and maintaining the resacas to increase

      storage capacity
water storage capacity and prevent
                           prevent flooding
                                   flooding in accordance
                                               accordance with
                                                          with the provision
                                                                   provision of

          which permits
state law which           municipality to
                permits a municipality to "improve,
                                          “improve, enlarge,
                                                    enlarge, equip,
                                                             equip, operate,
                                                                    operate, or
                                                                             or
PCD#239050                             18
maintain any
maintain any property,
             property, including
                        including…
                                 ... resacas...” Texas Gov't
                                     resacas..." Texas Gov’t Code
                                                             Code §§ 1502.002
                                                                     1502.002 (a).

                   Appellees’ actions
        likelihood Appellees'
In all likelihood             actions benefited
                                      benefited Appellant's
                                                Appellant’s property
                                                            property by helping to

prevent flooding, along the resaca by removing trash, debris and excess sediment,

              The fact
not hurt him. The  fact that
                         that his
                              his property
                                  property was
                                           was not
                                               not taken
                                                   taken but
                                                         but benefited
                                                             benefited by
                                                                       by Appellees’
                                                                          Appellees'

actions would
actions would explain
              explain Appellant’s
                      Appellant'sfailure
                                  failuretoto articulate
                                              articulateaa taking
                                                           taking claim
                                                                  claim in his
                                                                        in his

petition.

        The only
        The only complaint
                 complaint articulated
                           articulated in
                                       in his
                                          his petition
                                              petition was
                                                       was that
                                                           that Appellees’ had come
                                                                Appellees' had come

upon the water portion of the resaca as part of their cleaning and dredging process.

(Appellant’s Brief
(Appellant's Brief 9-10)  These allegations
                   9-10) These               formed the
                                 allegations formed the basis
                                                        basis of
                                                              of Appellant's
                                                                  Appellant’s

                                   governmental immunity and which Appellant
trespass claim which was barred by governmental

has not raised
has      raised in
                in this   appeal.22
                    this appeal.        But, even
                                        But, even giving
                                                  giving Appellant
                                                         Appellant great
                                                                   great latitude
                                                                         latitude in

assuming that
assuming  that his
               his alleged
                   alleged taking
                           taking claim
                                  claim is based upon
                                        is based      Appellees’ access
                                                 upon Appellees' access to
                                                                        to his

portion of
portion    the resaca,
        of the resaca, such
                       such a claim
                               claim would
                                     would not
                                           not support
                                                support aa claim
                                                            claim for
                                                                   for inverse
                                                                        inverse

condemnation. Effectively, such
condemnation. Effectively,  suchaa claim
                                   claim would
                                         would seem
                                                seemto
                                                     to be
                                                        be for some type
                                                           for some type of

transitory or passing entry on or through the resaca as part of the dredging process.

Such
Such a claim, even if itit had
                           had been
                                been articulated
                                      articulated by
                                                  by Appellant,
                                                     Appellant, would not support
                                                                          support a

claim for inverse
claim for  inverse condemnation
                   condemnation because
                                 becausesuch
                                         suchalleged
                                              allegedharm
                                                      harmisis viewed
                                                               viewed as
                                                                      as a

community
community loss
          loss and
               and is
                   is not
                      not a compensable
                            compensable taking.  The Texas
                                         taking. The Texas Supreme
                                                           Supreme Court has

“concluded that
"concluded      injuries to
           that injuries    property received
                         to property received or sustained
                                                 sustained in common
                                                              common with
                                                                     with the


2
2Claims for trespass are barred by the Texas Tort Claims Act. Harris County v. Cypress Forest
Pub. Util. Dist., 50 S.W.3d 551, 554 (Tex.App.-Houston [14th Dist.] 2001, no pet.).
PCD#239050                                19
community in which the property is situated, and resulting from the operation of a

public work,
public work, are community
                 community in nature. Community
                           in nature.  Community damages
                                                 damages are
                                                         are not
                                                             not connected
                                                                  connected

with the
with the landowner's
          landowner's use
                      use and enjoyment ofof property
                          and enjoyment      propertyand
                                                      andgive
                                                          give rise
                                                                rise to no
                                                                     to no

compensation.”
compensation." Felts v. Harris County, 915 S.W.2d 482 (Tex. 1996)(citing G.C.

& S.F. Ry. v. Fuller, 63 Tex. 467, 470–71
                                   470-71 (1885)).

           State v. Whataburger,
        In State    Whataburger, Inc., 60 S.W.3d
                                          S.W.3d 256
                                                 256 (Tex.
                                                      (Tex. App—Houston [14th
                                                            App—Houston [14th

Dist.] 2001, pet. denied), the Court of Appeals explained:

       The Texas
       The    Texas Constitution
                        Constitution provides
                                         provides that that nono person's
                                                                   person's property
                                                                              property
       “shall be
       "shall   be taken,
                   taken, damaged
                            damaged or   or destroyed
                                             destroyed for      or applied
                                                            for or  applied to
                                                                             to public
                                                                                public
       use without
       use  without adequate
                       adequate compensation
                                   compensationbeing    beingmade.”
                                                                 made." Tex. Const.
       art. I, §§ 17.
                  17. Translating
                         Translatingthisthisconcept
                                              concept into into aaworkable
                                                                    workable scheme
                                                                               scheme
       that produces
       that  produces aa "just,
                             “just, fair,
                                     fair, and
                                             and full
                                                    full compensation
                                                          compensation has  has often
                                                                                  often
       engrossed
       engrossed the the best
                          best thought
                               thought of  of the
                                              the courts.”
                                                    courts." Hart Bros. v. Dallas
       County, 279 279 S.W.
                          S.W. 1111,
                                  1111, 1111 1111 (Tex.1926).
                                                      (Tex.1926). BecauseBecause all
       enhancements,
       enhancements, whetherwhether public
                                       public or     private, are rarely
                                                 or private,          rarely achieved
                                                                             achieved
       without some
       without      some inconvenience,
                              inconvenience, not              all "damages"
                                                        not all      “damages” are  are
       compensable.
       compensable. Increased
                          Increased access
                                       access to     property often
                                                  to property            enhances its
                                                                  often enhances
       value; the inconvenience
       value;         inconvenience and temporary
                                                temporary impairment
                                                               impairment which
                                                                              which a
       property owner
       property    owner suffers                       improvements are
                            suffers when street improvements              are made
                                                                              made is
       simply an
       simply    an incident
                     incident ofof city
                                   city life
                                          life and
                                               and must
                                                      must be be endured.    “The law
                                                                 endured. "The     law
       gives him
       gives   him no right
                          right to
                                 to relief,
                                     relief, recognizing
                                              recognizing that  that he recoups
                                                                          recoups his
       damage in the benefit which he shares with the general
       damage                                                          general public
       in the
       in the ultimate
                ultimate improvement
                            improvement which which is       being made."
                                                         is being    made.” L—M—S
                                                                               L–M–S
                 Blackwell, 149 Tex. 348, 233 S.W.2d
       Inc. v. Blackwell,                                 S.W.2d 286, 289 (1950)(1950)
       (quoting Farrell
       (quoting    Farrell v. Rose,
                                  Rose, 253253 N.Y.
                                                  N.Y. 73,73, 170
                                                                170 N.E.
                                                                       N.E. 498,
                                                                             498, 499
                                                                                   499
       (1930)). Thus,
                   Thus, aa property
                             property owner
                                         owner may may notnot generally
                                                               generally recover for
       increased traffic
       increased     traffic noise,
                              noise, dust,     diversion of
                                      dust, diversion             traffic, circuity
                                                              of traffic,  circuity of
       travel, reduced
       travel,   reduced visibility
                            visibility byby the public,
                                                   public, etc. Felts Felts v. Harris
                                                                                Harris
       County, 915 S.W.2d 482, 485 (Tex.1996); State v. Schmidt, 867
       S.W.2d 769, 774 (Tex.1994).

                 that Appellant
        The fact that Appellant has not
                                    not suffered
                                        suffered any
                                                 any compensable
                                                     compensable taking
                                                                 taking is

further exemplified
further exemplifiedby
                    byhis
                       his allegations
                           allegationsfor
                                       fordamages.
                                           damages. The
                                                    The only
                                                        only form
                                                             form of
PCD#239050                                   20
damages he
damages    has articulated
        he has articulated in his petition
                           in his petition are for alleged
                                           are for alleged "mental
                                                           “mental anguish."
                                                                   anguish.”

(CR 27)
(CR 27) Mental
         Mentalanguish
                anguish damages
                         damages are
                                 are not
                                     not recoverable
                                          recoverable in    action for
                                                      in an action for

condemnation
condemnation or inverse condemnation.
                        condemnation. State v. Walker, 441 S.W.2d 168,

          1969).33
173 (Tex. 1969).

        Finally, in his Second Amended Petition Appellant states that the acts of the

Appellees were
Appellees were “illegal
                "illegaland
                         andunlawful
                             unlawfulaction.”
                                      action." (CR
                                               (CR 27-29) By stating
                                                   27-29) By stating that the
                                                                          the

actions of the Appellees were outside the bounds of any legal authority, Appellant

has plead
has plead allegations
          allegations that
                       that are
                             are contrary
                                 contrarytoto aa cause
                                                  cause of
                                                        of action
                                                            action for
                                                                    for inverse
                                                                         inverse

condemnation. Taking the
condemnation. Taking the Appellant's pleadings as
                         Appellant’s pleadings as true,
                                                  true, and
                                                        and the illegal acts of the

Appellees were unlawful
               unlawful and outside
                            outside the bounds of any legal authority, then their

actions cannot
actions cannot constitute
               constitute inverse
                          inverse condemnation. Therefore, despite not properly
                                  condemnation. Therefore,             properly

alleging a claim under Article I, Section
alleging                          Section 17 of
                                             of the
                                                 the Texas
                                                     Texas Constitution,
                                                           Constitution, Appellant
                                                                         Appellant

              plead that
has failed to plead that the
                         the Appellees were acting
                             Appellees were acting within
                                                   within their
                                                          their "lawful
                                                                “lawful authority"
                                                                        authority”

and instead plead that Appellees
                       Appellees were
                                 were acting
                                      acting outside
                                             outside their
                                                      their legal
                                                             legal authority.
                                                                   authority. Because

Appellant failed
Appellant failed to properly plead
                 to properly         cause of
                             plead a cause of action
                                               action for
                                                       forinverse
                                                           inversecondemnation
                                                                   condemnation

governmental immunity
governmental immunity applies,
                      applies, and
                               and the                              Appellees’
                                   the Trial Court properly granted Appellees'


3
3 The causes
 The   causes of
               of action
                   action and
                            and damages
                                 damages sought
                                             sought byby the
                                                          the landowner
                                                               landowner in Suleiman
                                                                               Suleiman v. Texas
                                                                                             Texas
Department of Public Transportation are very similar to those sought by Appellant in this
                                                      Transportation, 2010 WL 2431076 (Tex.
case. Suleiman v. Texas Department of Public Transportation,
                    st
App.—Houston [1st[1 Dist.] 2010, no pet.)(mem.op.).
                                         pet.)(mem.op.). Suleiman
                                                            Suleiman alleged
                                                                       alleged claims
                                                                                claims for inverse
condemnation and
condemnation    and for
                     for trespass
                         trespass based
                                   based inin part
                                              part on
                                                   on TXDOT’s      removal of
                                                      TXDOT's removal       of dirt,
                                                                               dirt, excavation
                                                                                     excavation on
                                                                                                on
Appellant’s property
Appellant's  property and
                       and emotional
                            emotional distress,
                                         distress, among
                                                   among other
                                                           other claimed
                                                                  claimed damages.
                                                                           damages. Id. at *7-10.
                                                                                            *740.
The
The court
     court of
           of appeals
              appeals affirmed
                       affirmed the
                                  the trial
                                      trial court’s award of
                                            court's award   of a plea to the jurisdiction on these
claims and damages. Id. at *10.

PCD#239050                                     21
Plea to the Jurisdiction
            Jurisdiction and this Court should affirm its decision.
                                                          decision. City of Dallas,
                                                                            Dallas,

200 S.W.3d at 272.

II. The
II.  TheAppellant
          AppellantHas
                    HasWaived
                        Waived Any
                                Any And
                                     And All
                                          AllUnasserted
                                              Unasserted Bases
                                                         Bases For
                                                               For
     Jurisdiction.

                                    Court, aa party's
        To present an issue to this Court,    party's brief
                                                      brief shall
                                                            shall contain,
                                                                  contain, among
                                                                           among other

                   non-argumentative statement
things, a concise, non-argumentative statement of
                                               of the
                                                  the facts of the case, supported

by record references, and a clear
                            clear and
                                  and concise
                                      concise argument
                                              argument for the
                                                           the contentions
                                                               contentions made

with appropriate
with appropriate citations
                 citationstoto authorities
                               authoritiesand
                                           andthe
                                               therecord.  TEX. R. APP. P. 38.1;
                                                   record. TEX.            38.1;

McIntyre v. Wilson,
McIntyre    Wilson, 50 S.W.3d
                       S.W.3d 674,
                              674, 682
                                   682 (Tex.App.--Dallas
                                        (Tex.App.--Dallas 2001, pet. denied).
                                                                     denied).

Existing
Existing legal
         legal authority
               authority applicable
                         applicable to
                                     to the
                                        the facts
                                            facts and
                                                  and the questions
                                                          questions we
                                                                    we are asked to

address must be accurately cited and analyzed. Bolling v. Farmers Branch Indep.

                S.W.3d 893,
Sch. Dist., 315 S.W.3d 893, 896
                            896 (Tex.App.--Dallas
                                (Tex.App.--Dallas2010,
                                                  2010,no
                                                        nopet.).
                                                           pet.). When a party

fails    adequately brief
fails to adequately brief a complaint,
                            complaint, he waives the
                                       he waives the issue
                                                     issue on
                                                           on appeal.
                                                               appeal.          In re
                                                                                In re

N.E.B.,251 S.W.3d 211, 212 (Tex.App.-Dallas 2008, no pet.).

        Appellant asserted
        Appellant asserted claims,
                           claims, in
                                   in the Trial Court, under 42 USC Section
                                                                    Section 1983,

Texas Water Code Section 11.035, and a common law cause of action for trespass.

(CR 27-28) Appellant
           Appellant has
                     has not
                         not asserted
                              asserted on
                                       on appeal
                                          appeal that
                                                  that jurisdiction
                                                        jurisdiction may be granted

pursuant to these claims,
pursuant          claims, and thus any appeal for jurisdiction
                                                  jurisdiction on
                                                               on the basis of said

claims is waived in total. Id.




PCD#239050                             22
                                  CONCLUSION

        On the face
        On the face of
                    of Appellant's
                       Appellant’s pleadings
                                   pleadings Appellant
                                             Appellant failed
                                                       failed to
                                                              to allege
                                                                 allege or
                                                                        or attempt
                                                                           attempt to
                                                                                   to

establish
establish any
          any waiver
              waiver of governmental
                        governmental immunity
                                      immunityon
                                               on the part of the
                                                  the part     the Appellees,
                                                                   Appellees,

asserted claims under statutory authority
                                authority that
                                          that does
                                               does not
                                                    not provide
                                                        provide for
                                                                for a valid cause of

action and failed to properly plead jurisdictional facts that would support a cause of

action under
action under inverse
             inverse condemnation. Appellant properly
                     condemnation. Appellant properly framed
                                                      framed the
                                                              the issue
                                                                  issue to
                                                                        to be

decided by
decided by this
           this Court
                Court in
                      in his
                         his Brief,
                             Brief, namely,
                                    namely, "whether
                                            “whether plaintiff
                                                     plaintiff has
                                                               has alleged
                                                                   alleged sufficient
                                                                           sufficient

jurisdictional facts
jurisdictional  factstoto show
                          show the
                                the trial
                                    trial court’s subject-matter jurisdiction.”
                                          court's subject-matter  jurisdiction." It is
                                                                                 It is

abundantly clear that Appellant has failed to allege sufficient facts to establish the

court’s jurisdiction. Consequently,
court's jurisdiction.  Consequently,Appellant's
                                     Appellant’sclaims
                                                 claimsare
                                                        arejurisdictionally
                                                            jurisdictionally barred
                                                                             barred

and the trial court's order granting
              court’s order granting Appellees'
                                     Appellees’ Amended
                                                Amended Plea
                                                        Plea to
                                                             to the
                                                                 the Jurisdiction
                                                                      Jurisdiction

should be affirmed.

                                      PRAYER

        WHEREFORE  PREMISESCONSIDERED,
        WHEREFORE PREMISES  CONSIDERED,Appellees,
                                        Appellees,the
                                                    theCity
                                                       City of

Brownsville, Texas and Public Utilities Board of Brownsville, Texas, respectfully
Brownsville,

                       affirm the
request that the Court affirm the Trial
                                  Trial Court’s
                                        Court's granting of the Brownsville’s
                                                                Brownsville's Plea to

the Jurisdiction.
the Jurisdiction. The
                   The City
                        City ofofBrownsville
                                  Brownsville and
                                               and Public
                                                    Public Utilities
                                                           Utilities Board
                                                                     Board of

Brownsville, Texas
Brownsville, Texas further
                    further respectfully
                            respectfullyrequest
                                         requestthat
                                                 that costs
                                                      costs be  taxed against
                                                            be taxed   against

Appellant, Dennis Ambrose,
Appellant, Dennis Ambrose, and
                           and for all other relief to which City of
                                                                  of Brownsville
                                                                     Brownsville

and Public Utilities Board of Brownsville, Texas may be entitled.



PCD#239050                             23
                         CERTIFICATE OF SERVICE

                                   and correct
      I hereby certify that a true and correct copy
                                               copy of the
                                                        the foregoing
                                                            foregoing document
                                                                      document has
been forwarded via electronic mail on this the 30th day of September, 2015 to:

Ruben R. Pena
125 Old Alice Road
Brownsville, Texas 78520
956-546-5778 (fax)
Riolaw1@aol.com
Riolawl@aol.com

                                      /s/ Eddie Trevino, Jr.
                                      Eddie Trevino, Jr.


                                      /s/ Lea A. Ream
                                      Lea A. Ream




                      CERTIFICATE OF COMPLIANCE

  certify that this
I certify      this document
                    document was
                               was produced
                                    produced on aa computer
                                                    computer using
                                                              using Microsoft
                                                                     Microsoft Word
                                                                               Word
2010 and contains
2010        contains 5,130
                      5,130 words,      determined by
                             words, as determined       the computer
                                                     by the computer software's
                                                                       software’s 19
word-count function,
word-count   function, including
                        including the
                                  the sections
                                      sections of
                                               of the document
                                                      document listed
                                                                listed in Texas Rule
of Appellate Procedure 9.4(i)(1).



                                      Lea A. Ream
                                      Lea A. Ream




PCD#239050                           24
                                     APPENDIX

Plaintiff’s Second Amended
Plaintiff's Second Amended Original
                           Original Petition
                                    Petition




PCD#239050                          25
                                                                             FILED
                                                                             2013-DCL-07168
                                                                             12/10/2014 4:45:29 PM
                                                                             Aurora De La Garza
                                                                             Cameron County District Clerk
                                                                             By Teodula Garza Deputy Clerk
                                 CAUSE NO.2013-DCL-7168-D                    3447792

DENNIS L. AMBROSE,                                   IN THE 103rd JUDICIAL
           Plaintiff
v.                                                   DISTRICT COURT OF

CITY OF BROWNSVILLE, TEXAS &
THE CITY OF BROWNSVILLE PUBLIC
UTILITY BOARD,                                       CAMERON COUNTY, TEXAS
                Defendants

                       PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

       NOW COMES, DENNIS L. AMBROSE, hereinafter referred to as Plaintiff, complaining
of the CITY OF BROWNSVILLE, TEXAS and the CITY OF BROWNSVILLE PUBLIC
UTILITY BOARD (PUB) , hereinafter called by name or as defendants, and for such cause of
action, would respectfully show unto the Court and jury as follows:
                                                I.
                                           PARTIES
       1.1 Plaintiff, DENNIS L. AMBROSE , is a resident of Cameron County, Texas.
       1.2 Defendant, the BROWNSVILLE PUBLIC UTILITY BOARD, is a semi
autonomous board of the City of Brownsville, with its own board of directors and its own
manager.
       1.3 The Defendant BROWNSVILLE PUBLIC UTILITY BOARD has appeared herein
and filed an answer.
       1.4 The CITY OF BROWNSVILLE, TEXAS has appeared herein and filed an answer.
       1.5 Venue is proper in Cameron County, Texas in that the incidents the basis of this
cause of action occurred in Cameron County, Texas, and the property subject of this suit is
located in Cameron County, Texas. Pursuant to Tex. Civil Practice & Remedies Code §15.011
venue is mandatory in Cameron County, Texas.
                                               II.
                                 FACTUAL ALLEGATIONS
       2,.1 The injuries and damages suffered by the plaintiff and made the basis of this action




                                                                                              26
arose out of a series of occurrences which occurred on or about September 2013 and continues
through the present.
          2.2 Plaintiff is the owner of real property where he resides and which is located adjacent
to Dean Porter Park, more particularly described as follows:
                 Lot Seven (7) and the Southeast Six feet (6') of Lost Six (6) in a resubdivision of
                 Lots One (1) and Two (2), Block Three (3), LOS EBANOS ADDITION, a
                 Subdivision in the City of Brownsville, Cameron County, Texas, according to the
                 Map of record in Volume 12, page 31, Map Records of Cameron County, Texas.


          2.3 On or about March 18, 2013, long before the incidents giving rise to these claims,
Plaintiff by and through his attorney advised the PUB, and the City of Brownsville and its legal
counsel that he opposed any dredging on his property, which includes the resaca. Plaintiff was
made aware through newspaper publications that the city and PUB were planning on dredging
resacas throughout Brownsville, Texas. Having previously been invaded by the Defendants
against his will and consent, Plaintiff sought to preempt the illegal and unlawful taking of his
property. In spite of his protests the Defendants nevertheless, undertook the illegal and unlawful
action.
          2.4   The actions by the Defendants violated his rights under the Texas constitution
article I, Section 19, in violation of title 42 USC section 1983, and in violation of his rights
under the Texas Private Real Property Rights Preservation Act. Plaintiff would further show
that the actions by these Defendants violated his rights under §11.035 of the Texas Water Code,
providing that
          2.5 In spite of such request to cease and desist the Defendants in violation of Plaintiffs
property rights, have trespassed by placing equipment on his property, dredging his resaca
without his consent. The dredging has caused Plaintiff a great deal of mental anguish.
          2.6   This has not been the first time the Defendants have entered onto Plaintiffs
property without permission and without securing an easement for the purposes of dredging the
said resaca. The Defendants have a history of trespassing on plaintiffs property without
obtaining permission or any legal right to do so. On at least two prior occasions Defendants
have trespassed on Plaintiff's property.     The trespass includes the unlawful entry on his




                                                                                                   27
property by employees of the Defendants and placing equipment , i.e. a tanker truck and two
pickup trucks on Plaintiffs property in September of 2013 without regard to the ownership of
Plaintiff and without regard that Plaintiff has sought injunctive relief. This constitute a willful,
wonton and malicious action on the part of the Defendants.


                                                 III.
        3.1 Defendants have failed to properly condemn plaintiffs property and have as a result
violated section 21.012 through 21.016 of the Texas Property Code. Under Chapter 2007.002
et. seq. of the Texas Government Code immunity has been waived as to suit and liability in
regards to a governmental taking. The City of Brownsville, Texas and the Public Utility Board
have admitted they are "political subdivisions" under the laws of the State of Texas. As such
governmental immunity is not applicable to governmental taking. Under Texas Water Code §
11.035 immunity has also been waived as to suit and liability.
        3.2   Plaintiff has complied with all conditions precedent.
                                                 IV.
                                            DAMAGES
        4.1   The conduct of defendants set out above constitute an inverse condemnation
without just and fair compensation.      Plaintiff is hereby entitled to recover actual damages.
                                                  V
                                         JURY DEMAND
        5.1 Plaintiff has previously requested a jury trial and reasserts his demand for a trial by
jury.


                                       Prayer for Relief
WHEREFORE PREMISES CONSIDERED, plaintiff prays that this Honorable Court grant the
following:
1. Judgment against the Defendants for Plaintiffs damages;
2 A permanent injunction be issued, on final trial of this cause, enjoining defendant, its agents,
servants, and employees, directly or indirectly from trespassing onto Plaintiffs property;
3. Court costs




                                                                                                 28
4. Attorneys fees;
5. Prejudgment interest as allowed by law;
6. Interest on said judgment at the legal rate from date of judgment
7. Such other and further relief to which plaintiff may be justly entitled


                                              Respectfully submitted,

                                              LAW OFFICES OF RUBEN R. PERA, P.C.
                                              125 Old Alice Rd
                                              Brownsville, Texas 78520
                                              Tele: 956-546-5775
                                              Fax: 956-546-5778

                                              BY:IslRuben R. Pena
                                                     RUBEN R. PESTA
                                                     State Bar No. 15740900
                                                     Cameron County I.D. No. 285801

                                          ATTORNEY FOR PLAINTIFF
                                  CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing Second Amended
Original Petition has been forward to the attorneys for the Defendants on this the 10TH day of
December, 2014.

VIA FACSIMILE• 210-349-0041

WILLIAM A. FAULK, III
Davidson Troilo Ream & Garza
7550 West 1F1-10, Suite 800
San Antonio, Texas 78229

VIA FACSIMILE: 956-554-0693

Eddie Trevino, Jr.
TREVINO & BODDEN
805 Media Luna, Bldg 300
Brownsville, Texas 78520


                                              /s/ Ruben R. Pena

                                              Ruben R. Pena




                                                                                            29
