During Hurricane Harvey in 2017, the San Jacinto River Authority released water from its Lake Conroe reservoir into the San Jacinto River. Contending that this release caused or contributed to the flooding of their properties, downstream property owners filed three multi-party suits in two different district courts, asserting both common-law inverse condemnation claims under Article 1, Section 17 of the Texas Constitution and statutory takings claims under Chapter 2007 of the Government Code. These cases reach us as interlocutory appeals from trial court orders denying the River Authority's motions to dismiss the three suits. The three cases have been consolidated for purposes of this appeal.
The issue we must decide is whether Chapter 2007 applies strictly to regulatory takings, as the River Authority maintains, or whether it may also apply to a physical taking, as the property owners contend. The court of appeals affirmed the trial courts' orders, which denied the River Authority's motions to dismiss, concluding
The San Jacinto River Authority is a conservation and reclamation district created in 1937 as a political subdivision of the State of Texas.
In 1973, the River Authority completed the construction of an earthen dam across the West Fork of the San Jacinto River to create Lake Conroe. The River Authority has operated and maintained the lake and dam since that time. The dam is about thirty miles north of the property owners' homes and properties.
The property owners allege that during Hurricane Harvey in late August and early September 2017, the River Authority released rising water from Lake Conroe into the West Fork of the San Jacinto River, causing or exacerbating the downstream flooding of their properties. They seek damages from the River Authority in three separate lawsuits in Harris County district courts. Each suit alleges takings claims under both the Texas Constitution
The River Authority filed Rule 91a motions to dismiss the property owners' suits on grounds of governmental immunity. See TEX. R. CIV. P. 91a. The district courts denied the motions, and the River Authority appealed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (authorizing an interlocutory appeal from an order on the government's jurisdictional plea). In that appeal, the River Authority raised a new jurisdictional argument, asserting that the county civil courts at law in Harris County possessed exclusive, original jurisdiction over eminent domain proceedings. See TEX. GOV'T CODE § 25.1032(c) ("A county civil court at law has exclusive jurisdiction in Harris County of eminent domain proceedings, both statutory and inverse.").
The court of appeals agreed that the district courts of Harris County lacked jurisdiction over the property owners' inverse-condemnation claims and dismissed them without prejudice to refile in the proper court. 570 S.W.3d at 838-39. Concluding that the district courts otherwise possessed jurisdiction to determine the property owners' statutory takings claims under Chapter 2007, the court of appeals affirmed the trial courts' decision not to dismiss them. Id. at 839; see also TEX. GOV'T CODE § 2007.021(a) (stating that takings claims under the chapter "must be filed in a district court"). The River Authority's petition for review to this Court complains that the appellate court erred in
Sovereign and governmental immunity protect the state and its political subdivisions, respectively, from suit and liability absent the state's express waiver. Rusk State Hosp. v. Black, 392 S.W.3d 88, 93 (Tex. 2012). Chapter 2007's Property Rights Act waives that immunity "to the extent of liability created by this chapter" by authorizing a property owner to bring suit "to determine whether the governmental action of a political subdivision results in a taking under this chapter." TEX. GOV'T CODE §§ 2007.004(a), .021(a). The Act defines the term "taking" to include governmental actions compensable as takings under the state and federal constitutions, as well as less intrusive governmental actions that cause "a reduction of at least 25 percent in the market value of the affected private real property." Id. § 2007.002(5). The Property Rights Act further enumerates the governmental actions to which it applies, while specifying fourteen governmental actions to which it does not apply. Id. § 2007.003.
The River Authority makes a twofold argument that the Act's waiver of governmental immunity does not apply to its decision to release water from the Lake Conroe reservoir. First, it contends that the Act applies only to regulatory takings and not the physical taking alleged by the property owners; that is, the flooding allegedly caused by the River Authority. Alternatively, the Authority maintains that even if the Act might be construed to cover a physical taking, its actions here are nevertheless excluded because they were responsive to "a grave and immediate threat to life and property." See id. § 2007.003(b)(7). We consider these arguments in turn.
The River Authority contends that Chapter 2007 applies to regulatory takings only. Takings may be classified as either physical or regulatory. Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004). A physical taking occurs when the government literally takes property from its owner, such as when it "authorizes an unwarranted physical occupation of an individual's property." Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). A regulatory taking occurs when the government restricts a property owner's rights to such an extent as to become the functional equivalent of a physical seizure. Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 490 (Tex. 2012). The River Authority maintains that a fair reading of the chapter indicates (1) that the liability created here is only for regulatory takings (not the physical taking alleged in the property owners' pleadings) and (2) that governmental immunity is waived only for suits to invalidate and rescind such regulations.
The court of appeals disagreed. It "reject[ed] the River Authority's contention that Chapter 2007 applies only to regulatory takings and does not apply to physical takings, such as flooding," noting that "the statute expressly applies to a governmental action `that imposes a physical invasion... of private real property.'" 570 S.W.3d at 832 (quoting TEX. GOV'T CODE § 2007.003(a)(2)). The court relied further on the chapter's broad definition of "taking." That definition includes both regulatory and physical takings. See id. at 831 (noting the inclusion of compensable takings under both the state and federal constitutions in the statutory definition). The
The River Authority maintains that the court of appeals has misinterpreted the physical-invasion provision to expand the chapter's scope to physical takings. It concedes, however, that governmental actions that impose a "physical invasion" of real property can refer to either a physical or regulatory taking. But in the context of this statute, it reasonably refers only to the latter, according to the River Authority.
The statute states that the chapter "applies only to the following governmental actions:"
TEX. GOV'T CODE § 2007.003(a)(1)-(4) (emphasis added). Because each action on the list can refer to a regulatory taking, the River Authority argues that "physical invasion" should be interpreted similarly and not as an outlier, different in type from the other enumerated actions. Although a physical invasion can refer to either a physical or regulatory taking, the River Authority contends that the words here refer only to regulatory takings, like the actions of "dedication" or "exaction," which appear along with physical invasion in Section 2007.003(a)(2). See Hearts Bluff Game Ranch, 381 S.W.3d at 477 n.20 (referring to the terms exaction and dedication as "somewhat distinct types of regulatory takings matters"). Moreover, interpreting "physical invasion" to reference a regulatory taking only is consistent with the other enumerated governmental actions, which the River Authority submits are also regulatory in nature. See TEX. GOV'T CODE § 2007.003(a)(1), (3). Finally, the River Authority observes that "the text does not include the primary mode for physical takings: a condemnation petition filed in court," citing section 21.012 of the Texas Property Code.
Indeed, it does not. In fact, the chapter expressly excludes formal condemnation proceedings from its scope. See TEX. GOV'T CODE § 2007.003(b)(8) (excluding "a formal exercise of the power of eminent domain" from the chapter). Condemnation is the formal process by which private property is taken for a public use without the owner's consent, but on the payment of adequate compensation. See TEX. PROP. CODE § 21.012 (stating the requirements for a condemnation petition); 17 WILLIAM V. DORSANEO III, TEXAS LITIGATION GUIDE §§ 261.40-.47 (2020) (discussing procedure for exercising eminent domain power). When the government takes or damages property without first initiating formal condemnation proceedings, however, the owner of private property may bring a common-law action for inverse condemnation. State v. Brownlow, 319 S.W.3d 649, 652 (Tex. 2010) (citing Westgate, Ltd. v.
The property owners argue that the exclusion of formal condemnation proceedings from the chapter, which the River Authority describes as "the primary mode for physical takings," confirms that Chapter 2007's application is not limited to regulatory takings. They submit that this exclusion is rendered superfluous under the River Authority's proposed limitation of the chapter to regulatory matters. It merely excludes that which the River Authority maintains is not included to begin with. The property owners argue that the exclusion has meaning only if Chapter 2007 otherwise applies to non-regulatory physical invasions that result in a physical taking of real property. The Legislature could have excluded all non-regulatory physical invasions of real property from the chapter's scope, just as it excluded the "formal exercise of the power of eminent domain" and thirteen other actions, many of which the property owners submit also include non-regulatory, physical takings. See, e.g., id. § 2007.003(b)(2), (3), (6), (7), (8), and (13).
The property owners also maintain that the statute's physical-invasion provision expressly states what these statutory exclusions imply, that the chapter does not apply solely to regulatory takings. The chapter instead applies to non-regulatory governmental actions, such as the water release from the reservoir that flooded their properties and thus "impose[d] a physical invasion ... of private real property." Id. § 2007.003(a)(2). The property owners conclude that construing the physical-invasion provision to include physical takings gives meaning to that text and harmonizes it with the chapter's suit-authorization language, id. § 2007.021(a), and taking's definition, id. § 2007.002(5). We agree.
The chapter provides that private property owners may bring suit to determine whether governmental action results in a "taking under this chapter." Id. § 2007.021(a). "Taking" is defined broadly to include governmental actions that satisfy the takings standard under the federal or state constitution or that reduce the market value of the affected property by at least 25 percent. Id. § 2007.002(5). A compensable taking under the state or federal constitution can be physical or regulatory. Gragg, 151 S.W.3d at 554. And we have held under somewhat similar circumstances that a political subdivision's decision to flood downstream properties for a public purpose can be compensable as a physical taking under the Texas Constitution. Id. at 554-55 (citing TEX. CONST. art. I, § 17). Chapter 2007 thus authorizes a statutory takings suit for governmental actions that constitute takings under the state or federal constitution (either physical or regulatory) or that cause a reduction of at least 25 percent in market value.
The River Authority does not deny the breadth of these provisions, nor does it deny that "physical invasion" may refer to a physical taking. Rather, it argues that a physical invasion can also be the consequence of a regulatory taking and that we should construe the language here to reference only that type of taking because that construction better fits the statutory
The Attorney General makes a similar argument as amicus curiae in support of the River Authority's petition for review. The Attorney General argues that the property owners lack standing under Chapter 2007 because the chapter offers them no prospect of redress. The only relief the property owners seek is an award of damages, and that is the only relief that can redress their alleged injuries. But the chapter does not include the judicial power to award damages. The chapter's only remedy for a taking is invalidation and rescission, which, the Attorney General argues, is not possible here. The River Authority echoes this sentiment. It argues that Chapter 2007's declaratory remedies serve a purpose only when a regulatory taking can be undone and that here it cannot rescind the floodwaters back into the reservoir.
We agree that Chapter 2007 does not obligate a governmental entity to pay damages. We also agree that rescission is not what the property owners seek. But we do not agree that rescission is the only remedy available to a prevailing property owner under the chapter. Chapter 2007 plainly provides for more than just rescission. See id. § 2007.006(a) ("The remedies provided by this chapter are in addition to other procedures or remedies provide by law." (emphasis added)). For example, the property owners may sue to adjudicate whether governmental actions result in a taking under the chapter, id. § 2007.021; they are entitled to a "takings" determination made by the trier of fact, id. § 2007.023(b); they are entitled to invalidation of the governmental action resulting in the taking, id.; they are entitled to a judgment that "include[s] a fact finding that determines the monetary damages suffered by the private real property owner as a result of the taking," id. § 2007.024(b); and they are entitled to an award of attorneys' fees and costs, if they prevail, id. § 2007.026(a). Thus, even though damages are not generally available
The state has waived its immunity from suit and liability "to the extent of liability created by [Chapter 2007]" and has authorized suits against its political subdivisions to determine "whether the governmental action of a political subdivision results in a taking under this chapter." TEX. GOV'T CODE §§ 2007.004(a),.021(a). If the property owner can establish a taking under the statutory definition, the property owner is entitled to invalidation of the governmental action resulting in the taking. Id. § 2007.023(b). The chapter further provides for alternative remedies of either rescission or damages for the taking. Id. § 2007.024. Damages are payable at the governmental entity's election from funds appropriated to it. Id. § 2007.024(c), (f).
Because the Dissent views the government's election to pay damages as unlikely and the rescission of prior governmental action as inconsequential, it concludes that any judgment the court might render would be "merely advisory" and intrude on the other branches of government. Post at ___ (citing Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 488 (Tex. 2018)). But it is the Legislature that has waived immunity from suit and liability for statutory takings and provided for these alternative remedies. That the government might decline to pay damages is no reason to dismiss the pending suits on jurisdictional grounds. Even if the statute had not waived immunity from liability to determine these damages, that would not affect a court's jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam) (explaining that immunity from liability is an "affirmative defens[e]" that "does not affect a court's jurisdiction to hear a case"). The Dissent's contrary rule would nullify many legislative grants of permission to sue, as any resulting suit against the government would fail the Dissent's redressability test if the government retains immunity from liability or limits collectability or enforcement of a judgment. See, e.g., TEX. CIV. PRAC. & REM. CODE §§ 101.107(a), 101.109, 107.002(b), 114.001; Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 414 (Tex. 1997) (Hecht, J., concurring) (noting that even without "governmental immunity from contract suits, successful plaintiffs still could not be paid without legislative appropriation").
Nor is it a reason to dismiss the statutory claim merely on the possibility that the constitution may provide the desired remedy. The taking defined by the chapter is broader than that cognizable under the constitution, and the remedy the statute provides may be all that is available to some of the property owners in these suits.
The statutory remedies are cumulative of other law but, of course, cannot be used to recover twice "for the same economic loss." TEX. GOV'T CODE § 2007.006(b). Moreover, the definition of "taking" does not say that the offending governmental action must be rescindable, continuous, or recurring, but instead provides that it may be actionable even though temporary or
Similarly, the requirements and formal procedures that apply to proposed governmental action under Subchapter C of the statute do not limit the chapter's scope to regulatory takings only. Subchapter C may be concerned with regulatory matters, providing as it does for a takings impact assessment and public notice of proposed governmental action. But Subchapter C independently provides for a suit to invalidate governmental action, stating that "[a] governmental action requiring a takings impact assessment is void if an assessment is not prepared." Id. § 2007.044(a) (emphasis added). The subchapter authorizes an affected property owner to "bring suit for a declaration of the invalidity of the governmental action" and again provides for an award of reasonable attorney's fees and court costs to a prevailing property owner. Id. § 2007.044(a), (c). The subchapter suggests, however, that not every governmental action or taking under Chapter 2007 implicates these requirements. Indeed, the subchapter's title states that its requirements are for "proposed governmental action."
We conclude that Chapter 2007 does not expressly limit its application to regulatory takings nor does it expressly exclude all physical takings from its terms. We note further that Subchapter C, titled "Requirements For Proposed Governmental Action," focuses on prospective regulatory takings and authorizes an affected property owner to "bring suit for a declaration of the invalidity of the governmental action" if the required takings impact assessment has not been done. Id. § 2007.044(a). The property owners obviously do not seek relief under that subchapter.
Their suit is instead under Subchapter B to determine whether the physical invasion of their properties by the River Authority's release of floodwaters constitutes a taking. Id. § 2007.021(a). As we have observed: "The Property Rights Act creates two causes of action in favor of real property owners: (1) a statutory cause of action for taking; and (2) a cause of action based on governmental action taken without preparing a TIA [takings impact assessment], if the Property Rights Act requires a TIA." Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734-35 (Tex. 2002). Subchapter B authorizes a private real property owner to "bring suit under this subchapter to determine whether the governmental action of a political subdivision results in a taking" under the statute. TEX. GOV'T CODE § 2007.021(a). The statute's "General Provisions" in Subchapter A define "taking" to include both physical and regulatory takings, and governmental action to include, among other things, the "physical invasion" of property, which the parties agree may refer to either type of taking. Id. §§ 2007.002(5), .003(a)(2).
The River Authority nevertheless maintains that the lower courts should have dismissed the property owners' statutory claims because Chapter 2007 does not waive governmental immunity for physical takings, which is all that the property owners have alleged. The court of appeals rejected that notion, and we agree that the chapter does not apply exclusively to regulatory takings. If that were true, no need would exist for several of the chapter's exclusions, including the two that the River Authority argues must apply to the actions it took during the Hurricane Harvey weather emergency. "As a general principle, we eschew constructions of a statute that render any statutory language
We next consider the application of the statutory exceptions raised by the River Authority in the context of its motion to dismiss under Texas Rule of Civil Procedure 91a.
Chapter 2007 expressly excludes four-teen types of government actions, two of which apply here, according to the River Authority. See TEX. GOV'T CODE § 2007.003(b) (listing the governmental actions excluded from the chapter). The chapter does not apply to:
Id. § 2007(b)(7), (13). Because Chapter 2007 excludes certain emergency situations and responses, the River Authority argues that its actions here, which were responsive to a weather emergency, preclude the property owners' statutory claims. It concludes that the statutory claims should therefore have been dismissed under Rule 91a, rather than remanded to the trial court.
Rule 91a provides that a party "may move to dismiss a cause of action on the grounds that it has no basis in law or fact." TEX. R. CIV. P. 91a.1. "A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded." Id. In ruling on a Rule 91a motion, a court "may not consider evidence... and must decide the motion based solely on the pleading of the cause of action." Id. 91a.6. We review the merits of a Rule 91a motion de novo. City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam).
The River Authority argues that, as a matter of law and common sense, no reasonable person could believe Hurricane Harvey was not "a grave and immediate threat to life or property" or "a real and substantial threat to public health and safety." TEX. GOV'T CODE § 2007(b)(7), (13). It asks the Court to take judicial notice of the disaster declarations made by the President and Governor to establish that the River Authority was reacting to an emergency situation during the time it allegedly flooded the property owners' homes. The court of appeals declined to take judicial notice of the River Authority's proffered evidence, noting that Rule 91a expressly prohibits a court's consideration of evidence and expressly requires that the motion be decided on the pleadings. 570 S.W.3d at 831. But even without judicial notice, the River Authority maintains that the property owners' pleadings similarly demonstrate that Hurricane Harvey presented an emergency that threatened life and property by indicating that the River Authority's purpose in releasing
The property owners respond that the factual allegations in their pleadings do not conclusively establish either exclusion. They describe the statutory exclusions as affirmative defenses, which under Rule 91a must "be conclusively established by the facts in a plaintiff's petition." Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656 (Tex. 2020). They submit that these exclusions raise inherent fact questions, which their pleadings do not resolve. For example, the pleadings do not conclusively establish the (b)(7) exclusion because the property owners have never asserted that the River Authority released water as it did with a reasonable good faith belief that doing so was necessary to prevent a grave and imminent threat to the dam's structure and operation. To the contrary, their pleadings indicate that the River Authority knew the dam could withstand much more rainfall and much higher inflow rates than the watershed rainfall and inflow rates experienced during Harvey and that it also knew the water from Harvey could have been released at much slower rates without damaging the dam or losing control of its floodgates. The River Authority allegedly knew this from another weather event decades earlier, which, according to the property owners, dropped almost twice as much rain in the watershed over a similar four-day period, with corresponding larger peak inflows and yet resulted in much slower and less damaging water release rates. Based on these allegations, the property owners submit a reasonable person could conclude that the River Authority did not have a reasonable good faith belief that it was necessary to release water as it did to prevent a grave and immediate threat to life or property.
The property owners further maintain that the River Authority knew it was unnecessary to release water as it did to "prevent a grave and immediate threat to" the dam and its floodgates because Lake Conroe had the capacity to store additional floodwaters until Harvey passed. In this regard, they note the existence of a flowage easement, which allows the River Authority to store water up to 207 feet above mean sea level "during storm events." The recorded easement "notif[ies] landowners that any structures below this elevation are subject to being flooded."
According to the pleadings, Lake Conroe's water or pool level did not reach 207 feet above mean sea level during the storm. After the water reached its highest level of 206.24 feet, the River Authority began releasing water at record flow rates, reducing the pool level by about three and one-half feet over forty-eight hours and allegedly causing devastating flooding downstream. The property owners thus complain that the River Authority did not use all available capacity to store floodwaters during Harvey, even though it could have done so without threatening the dam's structural integrity. They submit that, as with the allegations regarding rainfall and flow rates, a reasonable person could conclude that the River Authority did not have a reasonable good faith belief that it was necessary to release water as it did to prevent a grave and immediate threat to life or property, based on their pleadings.
The River Authority, however, reads the plaintiffs' pleadings as an admission of its own good faith. It argues that the plaintiffs' pleadings concede that the River Authority released water "to relieve pressure on the dam" and "protect its stability and integrity" and thus conclusively establish its good faith in the matter.
570 S.W.3d at 837.
The property owners submit that their pleadings do not establish that the River Authority's actions met either the "reasonable good faith belief" test of (b)(7) or the measured-and-appropriate response required by (b)(13). Rather, they submit that the River Authority's reasonable good faith belief that it was necessary to release the water as it did or whether its actions imposed a greater burden than necessary to protect public safety are fact questions which their pleadings do not answer. See TEX. GOV'T CODE § 2007.003(b)(7) (excluding "an action taken out of a reasonable good faith belief that the action is necessary to prevent a grave and immediate threat"); id. § 2007.003(b)(13) (requiring that the governmental action "not impose a greater burden than is necessary to achieve ... safety"). The property owners' pleadings thus put at issue whether it was reasonable or necessary for the River Authority to release the floodwaters as it did.
The pleadings assert that Lake Conroe's water level can exceed 207 feet above mean sea level for a short time without threatening the dam's structural integrity when necessary to minimize risk to life and property on both sides of the dam. The pleadings further compare Harvey to another slow-moving storm decades earlier that the property owners allege produced more rainfall and higher inflow rates, but which the River Authority managed with
The River Authority vividly responds that "[d]odging a bullet once does not make later gunfire any less life-threatening." Thus, a disaster avoided in a previous storm does not allow reasonable persons to believe Harvey posed no threat to life or property. While that may be true, neither does it establish as a matter of law the elements of the two exclusions at issue. The pleadings indicate that the River Authority's knowledge and past experiences inform the issues of good faith and reasonableness entwined in the two exclusions. The parties have not briefed the meaning of good faith in the context of this statute, and we accordingly express no opinion on the subject. We hold only that the property owners' pleadings do not conclusively establish either statutory exception, which is what Rule 91a demands. The lower courts accordingly did not err in denying the Rule 91a motions to dismiss.
In summary, we hold that Chapter 2007 creates liability and waives governmental immunity for two causes of action: (1) a statutory takings claim under Subchapter B and (2) a suit to rescind proposed governmental action under Subchapter C. We hold further that the statutory takings claim may include a physical taking, such as the flooding alleged by the property owners, and is not limited solely to regulatory takings. Finally, we conclude that statutory exceptions to liability under the chapter are not established by the property owner's pleadings and that the court of appeals therefore did not err in affirming the trial courts' orders, which denied the River Authority's motions to dismiss under Rule 91a.
The judgment of the court of appeals is affirmed.
Justice Blacklock filed a dissenting opinion.
Justice Blacklock, dissenting.
This Court held long ago that a dispute "is not a judicial question" if a court's "judgment would only amount to a declaration" that an unlawful act had taken place, which "might result incidentally in benefit... to some citizen" but is "not ... enforced by any process issued from the court." State v. Owens, 63 Tex. 261, 266 (1885). This rule exists because Texas courts, including this one, exercise only "the judicial power of the state...." TEX. CONST. art. V, § 3 (emphasis added). The judicial power does not include the authority to answer an "abstract question of law without binding the parties." Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). Instead, the "judicial power" is the authority "of a court to ... pronounce a judgment and carry it into effect between ... parties who bring a case before it for a decision." Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 644 (1933) (emphasis added).
The "redressability" element of standing preserves these limitations on the judicial power. To establish a court's jurisdiction,
Contrary to these well-established limitations on the judicial power, the Court's decision authorizes a statutory takings claim under Chapter 2007 of the Government Code even though a favorable judgment on that claim would do nothing to redress the plaintiffs' alleged injury. The alleged injury is the flooding of the plaintiffs' homes during Hurricane Harvey as a result of the San Jacinto River Authority's decision to release water from Lake Conroe. Years after the fact, that injury can only be redressed by monetary damages, and the plaintiffs have a claim pending in another lawsuit seeking takings damages through the normal channels. Chapter 2007, however, creates a unique statutory cause of action under which the courts have no authority to award damages. Instead, Chapter 2007 requires the courts, if the plaintiff prevails, to issue a judgment "rescinding" the taking. In this case, such a judgment would be nonsensical. The flooding of homes several years ago cannot be undone, so judicial "rescission" of the taking is a meaningless gesture that does nothing for the plaintiffs.
The most the plaintiffs could hope to achieve using Chapter 2007 is a free-floating judicial "finding" that the flooding of their homes was a taking by the SJRA resulting in damages in an amount identified by the court. They cannot use Chapter 2007 to actually obligate the SJRA pay that amount, which would be the only way to redress their injuries. Indeed, the judgment the plaintiffs seek would not require the SJRA to do or refrain from doing anything. The plaintiffs, however, anticipate that the judgment's persuasive, precedential, or preclusive effect would help them obtain damages from the SJRA in the future, either in another lawsuit or by the SJRA's voluntary decision to pay. In other words, their Chapter 2007 claims invite the courts to "decid[e] a question... abstract in its nature ... simply to be taken notice of and observed by all officers and citizens." Ex parte Towles, 48 Tex. 413, 436 (1877). This is precisely the sort of "extra-judicial question" that is not properly "a subject of legal adjudication." Id. at 437.
I would dismiss the Chapter 2007 claims for lack of jurisdiction. Although Chapter 2007 is not an appropriate vehicle for the plaintiffs' grievances, they are of course free to pursue their pending constitutional takings claims in the county court at law.
Standing—which consists of a concrete, particularized stake in the resolution of "a real controversy" capable of "be[ing] resolved by the court"—is a constitutional requirement for maintaining suit. Heckman, 369 S.W.3d at 154, 150. As a component of subject matter jurisdiction, standing "may be raised for the first time on appeal." Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018). Even where neither party questions standing, as here, courts are "duty-bound" to consider the issue sua sponte if in doubt. Garcia v. City of Willis, 593 S.W.3d 201, 206 (Tex. 2019).
Article III of the U.S. Constitution imposes an analogous standing requirement in federal courts. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. This Court has adopted the standing criteria articulated by the U.S. Supreme Court as a means of evaluating litigants' standing under the Texas Constitution. Heckman, 369 S.W.3d at 154. To establish standing under this framework, a plaintiff must plead facts showing that (1) he or she has suffered, or is at imminent risk of suffering, a "concrete and particularized ... injury"; (2) the injury is "traceable" to the defendant's challenged actions; and (3) the injury will "`likely' ... be `redressed by a favorable decision.'" Id. at 154-55 (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). We often look to federal case law for guidance in applying these criteria. Id. at 152 n.60. Although this Court does not defer uncritically to the federal judiciary when interpreting the Texas Constitution, we afford respectful consideration to federal decisions to the extent they are "well-reasoned and persuasive." Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992).
Redressability is the element of standing most clearly implicated in this case. This
With these principles in mind, the question is whether a favorable judgment under Chapter 2007 can redress the plaintiffs' alleged injuries. This inquiry, like any question of statutory interpretation, depends on the statute's plain language. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). "Time-honored canons of interpretation, both semantic and contextual, can aid interpretation." BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 84 (Tex. 2017). "Strictly speaking," however, the "canons" are "but grounds of argument resorted to for ... ascertaining the true meaning of the law." Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex. 2004) (quoting Mills County v. Lampasas County, 90 Tex. 603, 40 S.W. 403, 404 (1897)). However strong the desire to afford relief for deprivations of the fundamental right to property, such "policy concerns do[ ] not bear directly on... statutory-interpretation question[s]." JCB, Inc. v. Horsburgh & Scott Co., 597 S.W.3d 481, 490 (Tex. 2019). "Our job is to apply the statutory text as written, not as we would have written it." Id.
Chapter 2007 says that a property owner who prevails "is only entitled to, and the governmental entity is only liable for, invalidation of the governmental action ... resulting in the taking." TEX. GOV'T CODE § 2007.023 (emphasis added). It further provides that a court "shall order [a] governmental entity to rescind" an action found to be a taking. Id. § 2007.024. Far from authorizing a court to award damages, this language negates the existence of such authority. "There is a difference between voiding" an official act "and seeking damages as a remedy for [that] act." City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995). The statute reflects a deliberate legislative choice to provide "only" for courts to order rescission/invalidation, not damages. Yet only damages can redress the injury that brings these plaintiffs to court.
Yes, the statute requires these findings, but the only relief a court may order on the basis of these findings is rescission of the taking. The court's judgment must "include a fact finding that determines the monetary damages [the plaintiff] suffered... as a result of the taking." TEX. GOV'T CODE § 2007.024(b). But this language provides for an estimate—not an award—of damages. That estimate comes into play only when a government defendant "elect[s] to pay the damages as compensation" to a prevailing property owner in exchange for a court's "withdraw[al] [of] the ... order rescinding the governmental action" determined to be a taking. Id. § 2007.024(c), (d) (emphasis added). Under this peculiar framework, the court orders rescission of the taking but also identifies a dollar amount that the government may elect to pay in lieu of rescission, purely at the government's option. In no event does the statute empower a court to order payment of damages.
Without a judgment carrying their desired "findings" into effect, the plaintiffs have nothing but a piece of paper signed by a court containing pronouncements in their favor. They may hope to use these findings to redress their injury down the road by (1) convincing the SJRA to voluntarily pay damages, or (2) convincing another court to award a judgment of damages. But the findings themselves do not require their houses to be repaired or require the SJRA to compensate them. Redressability means "that the court [would] be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power." Franklin v. Massachusetts, 505 U.S. 788, 825, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (Scalia, J., concurring in part and concurring in judgment).
The plaintiffs suggest that, apart from rescission or damages, they are entitled to a standalone judicial "determination" of "whether governmental actions result in a `taking.'" The Court seems to share that view. See ante at 625. If the idea is that this statute authorizes a court to award a declaratory judgment unaccompanied by any other form of relief, that is mistaken. The statute dictates that a "court's judgment in favor of a private real property owner ... that determines that a taking has occurred shall order the governmental entity to rescind the governmental action... resulting in the taking." TEX. GOV'T CODE § 2007.024 (emphasis added). In other words, the legislature has dictated the content of a Chapter 2007 judgment in favor of a plaintiff, and the judgment must be one of rescission. See id. § 311.016(2) ("`Shall' imposes a duty."). The preceding statutory section, which entitles a prevailing property owner to "invalidation of the governmental action ... resulting in the taking," id. § 2007.023, likewise can only be applied where rescission of that action is possible. See id. § 311.021 ("In enacting a statute, it is presumed that ... a result feasible of execution is intended."). To comply with the legislature's direction, a court would have to order the SJRA, on pain of contempt, to "rescind" its 2017 release of floodwaters from Lake Conroe, millions of gallons of which flowed into the San Jacinto River years ago. Such a non-sensical judgment, with which the SJRA cannot comply, would have no practical effect on either party and would not redress the plaintiffs' injuries.
To be sure, the property owners might in some way benefit from a judgment containing the "findings" they seek, since that
For similar reasons, a litigant's interest in a favorable judgment's possible preclusive effect, standing alone, has never been considered a cognizable interest for standing purposes. Since a dismissal for lack of standing is "a dismissal for lack of jurisdiction, and a court that has no jurisdiction cannot enter a judgment with preclusive effect ... except on the issue of jurisdiction itself, it is circular to argue" that a plaintiff has standing by virtue of a favorable judgment's "preclusive effect, when it can have preclusive effect only if" the plaintiff has standing. Commodity Futures Trading Comm'n v. Bd. of Trade of City of Chi., 701 F.2d 653, 656 (7th Cir. 1983); see also United Servs. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 863-64 (Tex. 1965) (explaining that courts need jurisdiction in order to render judgment with preclusive effect).
Nor could a court alleviate the constitutional defects in the plaintiffs' claims by issuing a judgment claiming to "rescind" or "invalidate" the taking despite the impossibility of that action. It is as much a principle of common sense as it is of constitutional law that a plaintiff has no standing to seek a judicial decree "to enjoin an event that has already fully occurred." CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 621 (1st Cir. 1995). Redressability cannot be established where, as a practical matter, it is "impossible for the courts to redress the injury through the exercise of their remedial powers." Fund for Animals v. Babbitt, 89 F.3d 128, 133 (2d Cir. 1996). Here, "[n]o mandate that [a court] might issue can turn back the pages of the calendar and either stop" the SJRA's release of water from Lake Conroe "or fully palliate its effects." CMM Cable, 48 F.3d at 621. "There is no prospective remedy that can unring that bell." Opala v. Watt, 454 F.3d 1154, 1160 (10th Cir. 2006). Because an order to "rescind" or "invalidate" the purported taking in this case "would be ineffectual" and "could not possibly remedy" the property owners' "alleged harm," they "lack[ ] standing to seek such relief." Meyers, 548 S.W.3d at 488. The bottom line is
The plaintiffs nevertheless pin their hopes on the election-of-remedies provision, under which the government may choose to pay damages if it prefers that route to rescission of the taking. The plaintiffs "suspect [that] the prospect of public outcry and political fallout" from a court's finding that the 2017 release of water was an unlawful taking might pressure the SJRA into paying damages, even in the absence of a judgment making it do so. Respondent's Brief on the Merits at 37. Such optimistic speculation cannot establish redressability. "[I]t must be likely, as opposed to merely speculative, that the [plaintiff's] injury will be redressed by a favorable decision." Heckman, 369 S.W.3d at 154-55 (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130). The SJRA, far from signaling even the slightest willingness to pay compensation, condemns the plaintiffs' speculation about "political fallout" as "simply a threat that political pressure will compel ... a political subdivision to pay damages the Legislature prohibited." Reply Brief on the Merits at 32-33. "This veiled threat," says the SJRA, "ought not to be tolerated." Id. at 33. Hardly the words of a defendant in a generous mood.
At any rate, even if the SJRA could reasonably be expected to voluntarily pay damages should the property owners prevail, redressability would still be lacking. Again, redressability means "that the court [would] be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power." Franklin, 505 U.S. at 825, 112 S.Ct. 2767 (Scalia, J., concurring in part and concurring in judgment). The federal courts of appeals have consistently so held.
As the U.S. Supreme Court explained in 1864, courts are without power to decide disputes in which they are not "authorized by law ... to carry into effect the[ir] judgment[s]." Gordon, 69 U.S. (2 Wall.) 561, 17 L.Ed. 921. A court in such a case "could merely express an opinion, which... binds no one, is no judgment in the legal sense of the term," and is therefore not within the "judicial power ... granted by the Constitution." Id.
Here, a court's estimate of damages suffered by the property owners would amount, at most, to a recommendation that the SJRA compensate them. The case law on that point is clear: a recommendation, no matter how persuasive or well-reasoned, does not partake of the "judicial power." That the SJRA would be free to "completely disregard [a] judgment" that the property owners are owed compensation demonstrates that "the courts [a]re not authorized to render" such judgment in the first place. Waterman, 333 U.S. at 113-14, 68 S.Ct. 431. To do so would be to "decid[e] a question ... abstract in its nature, because not enforced by [the courts], ... simply to be taken notice of and observed by all officers and citizens." Towles, 48 Tex. at 436 (1877). This sort of "extra-judicial question" is not properly "a subject of legal adjudication." Id. at 437.
The Court's principal response to these concerns is to observe that "the Legislature... has waived immunity to suit and liability for statutory takings" and so the fact "[t]hat [the SJRA] might decline to pay damages is no reason to dismiss the pending suits on jurisdictional grounds." Ante at 626. The first statement is true but irrelevant; the second is relevant but not true. As for the former, the State's consent to suit eliminates sovereign-immunity obstacles to the property owners' claims, but that has nothing to do with whether their claims meet the entirely separate constitutional requirement of standing, which the legislature cannot waive. See Morrow, 62 S.W.2d at 646 ("Since advisory jurisdiction... is not given" to courts "under the Constitution," it "cannot be conferred by the Legislature").
The Court's other assertion—"[t]hat [the SJRA] might decline to pay damages is no reason to dismiss the pending suits on jurisdictional grounds"—is simply wrong, for the reasons already explained. The fact that a judgment for the property owners would leave it entirely up to the SJRA whether to take the only action (paying damages) capable of remedying the plaintiffs' injuries is absolutely a "reason to dismiss the[se] ... suits on jurisdictional grounds." The nonbinding nature of such a "judgment" means redressability is lacking, which means the courts lack jurisdiction.
The Court also points to the legislature's ability to waive immunity from suit, but not from liability, thereby allowing a party to obtain a damages judgment against the government but not to collect on it unless the legislature appropriates money to pay it. See Fed. Sign v. Tex. So. Univ., 951 S.W.2d 401, 414 (Tex. 1997) (Hecht, J., concurring). The Court warns that my position "would nullify" these "many legislative
The Court's warning is misplaced. There is a critical difference between money judgments against the government that require appropriation before they can be collected and any "judgment" a court might render for the property owners under Chapter 2007. The former adjusts the parties' legal rights, while the latter does not. The difference is tied to a provision of the Texas Constitution that prohibits the legislature from "grant[ing], by appropriation or otherwise, any amount of money out of the Treasury of the State, to any individual, on a claim, real or pretended, when the same shall not have been provided for by pre-existing law." Art. III, § 44. This provision has been "interpret[ed].... to mean that the Legislature cannot appropriate state money to `any individual' unless ... there is already in force ... a legal and valid obligation of the state .... as would form the basis of a judgment against [it]... in the event it should permit itself to be sued." Austin Nat. Bank of Austin v. Sheppard, 123 Tex. 272, 71 S.W.2d 242, 245 (1934). A "mere moral obligation," on the other hand, will not "support an appropriation of state money to an individual." Id.
Thus, when immunity from suit is waived but immunity from liability is not, a court's judgment for a plaintiff, even if uncollectable without an appropriation, nonetheless establishes the government's legal obligation to pay the plaintiff, which in turn enables the legislature to make an otherwise constitutionally forbidden appropriation to the plaintiff.
The Court's remaining arguments for writing off redressability concerns are similarly unavailing. It points to Section 2007.006(a), which reads, "[t]he remedies provided by [Chapter 2007] are in addition to other procedures or remedies provided by law." This language, however, does not itself provide for any such "other" remedies. Instead, it merely clarifies that relief otherwise available under law is not displaced by Chapter 2007, and the plaintiffs do not cite any other provision of law that would entitle them to damages here. The Court also considers it significant that Section 2007.006(a) refers to the "remedies"— plural—"provided by [Chapter 2007]." But this phraseology is simply a recognition that the statute's election-of-remedies provision contemplates rescission as well as damages as potential remedies for a taking. Crucially, as explained above, it is only rescission that a court may order, while damages are available only at a government defendant's option. The statute's reference to multiple "remedies" does nothing to solve the redressability problem. The Court also points out that prevailing property owners are entitled under Subchapter B to awards of attorney fees and costs. See TEX. GOV'T CODE § 2007.026(a). A plaintiff's "interest" in recovering expenses incurred in litigation, however, is not sufficient to establish standing to litigate the underlying claim. As the U.S. Supreme Court has explained, "the mere fact that continued adjudication would provide a remedy for an injury that is only a byproduct of the suit itself" does not give rise to standing. Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986).
No matter how sympathetic these property owners' predicament may be, the "doctrine of standing is a crucial and inseparable element" of the "separation of powers...., whose disregard will inevitably produce ... an overjudicialization of the processes of self-governance." Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 881 (1983). The plaintiffs cannot demonstrate that the injuries they suffered during Hurricane Harvey "will `likely' ... be `redressed by a favorable decision'" on their Chapter 2007 claims. Heckman, 369 S.W.3d at 154-55 (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). Their statutory takings claims should be dismissed while their constitutional takings claims move forward in county court.