IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50994

DAVID STRATTA; ANTHONY FAZZINO,

Plaintiffs - Appellants

v.

JAN A. ROE, in her individual and official capacity as director of the Brazos 

Valley Groundwater Conservation District; BILLY L. HARRIS, in his 

individual and official capacity as director of the Brazos Valley Groundwater 

Conservation District; BRYAN F. RUSS, JR., in his individual and official 

capacity as director of the Brazos Valley Groundwater Conservation District; 

JAYSON BARFKNECHT, in his individual and official capacity as director of 

the Brazos Valley Groundwater Conservation District; MARK J. CARRABBA, 

in his individual and official capacity as director of the Brazos Valley 

Groundwater Conservation District; GORDON PETER BRIEN, in his official 

capacity as director of the Brazos Valley Groundwater Conservation District; 

STEPHEN C. CAST, in his individual and official capacity as director of the 

Brazos Valley Groundwater Conservation District; BRAZOS VALLEY 

GROUNDWATER CONSERVATION DISTRICT,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

United States Court of Appeals

Fifth Circuit

FILED

May 29, 2020

Lyle W. Cayce

Clerk

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Before JONES, SMITH, and HAYNES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

A pair of landowners sued the Brazos Valley Groundwater Conservation 

District (“BVGCD”) and its Board of Directors. The BVGCD is a Texas political 

subdivision whose mission is to manage water resources within its two-county 

jurisdiction. One of them contends the BVGCD has allowed the City of Bryan 

to drain groundwater from under his property without compensation, violating 

the Constitution’s Equal Protection and Takings clauses. The other, a Board 

Member of BVGCD, alleges that the Board deprived him of First Amendment 

rights by preventing him from speaking at a public meeting. The district court 

dismissed their claims on the grounds of Eleventh Amendment immunity, 

ripeness, Burford abstention, and qualified immunity. Because the district 

court erred on all grounds except the dismissal of the First Amendment claim, 

we AFFIRM IN PART, REVERSE IN PART, and REMAND.1

BACKGROUND

Appellants Anthony Fazzino and David Stratta are landowners with 

property within the territorial boundaries of the BVGCD. Stratta is also a 

member of the BVGCD Board of Directors. Fazzino owns 26.65 acres of real 

property in Brazos County Texas. Under Texas law, Fazzino also owns the 

groundwater beneath his land, including the groundwater located in the 

Simsboro aquifer. The City of Bryan, Texas, owns a 2.7-acre tract that is less 

than 3,000 feet distant from Fazzino’s property.

BVGCD is a Groundwater Conservation District (“GCD”) created under 

Section 59, Article XVI of the Texas Constitution and Chapter 36 of the Texas 

Water Code (“TWC”) for the purpose of managing groundwater resources. TEX.

1 Judge Haynes concurs fully in the reasoning as to the takings claim but concurs in 

the judgment only as to the class-of-one equal protection claim. Judge Jones dissents as to 

Part III.

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WATER CODE §§ 36.0015, 36.011. GCDs are statutorily tasked with developing 

groundwater management plans that regulate the production and 

conservation of water, govern its use, study the quantity of water flowing into 

and out of the aquifers within their territory, and minimize waste. Currently, 

nearly one hundred GCDs cover over 60 percent of the state’s land and 

encompass approximately 72 percent of major and minor aquifers. The 

territorial boundaries of 60 GCDs coincide with a single county or less, while 

the remaining GCDs cover more than one county. BVGCD’s boundaries are 

coextensive with Robertson and Brazos Counties.

Pursuant to its authority under TWC Chapter 36, BVGCD promulgates 

rules governing the production of groundwater from the Simsboro formation. 

On December 2, 2004, new rules (“Rules”) took effect to regulate landowners’

production of groundwater by establishing three categories of wells: 

1) Existing Wells; 2) New Wells; and 3) Wells with Historic Use. The rules 

regulate “groundwater pumpage,” i.e., how much water may be withdrawn 

from a well, through spacing requirements and production limitations.

The spacing and production requirements are designed to “minimize as 

far as practicable the drawdown of the water table and the reduction of 

artesian pressure, to control subsidence, to prevent interference between wells, 

to prevent degradation of water quality, and to prevent waste.” RULES OF THE 

BRAZOS VALLEY GROUNDWATER CONSERVATION DISTRICT, Rule 6.1(a)

(published Dec. 1, 2004).2 As water is drawn from a well, it creates a “cone of 

depression” impact; when more water is withdrawn there is a larger cone of 

depression. Rule 7.1 established maximum allowable production regulations 

for New Wells according to a formula that calculates the “total number of 

2 The most recent version of the Rules, amended September 12, 2019, retains that 

precise language.

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contiguous acres required to be assigned to the well site.”3 The definition of 

“contiguous acreage” requires that the land be “owned or legally controlled . . . 

by the well owner or operator,” and that the land “shall bear a reasonable 

reflection of the cone of depression impact near the pumped well, as based on 

the best available science” and BVGCD’s formula. Id. at Rule 1.1(6). The 

formula thus requires 649 contiguous acres surrounding a New Well producing 

3,000 gallons per minute (“GPM”), which equates to a circle around the well 

with a radius of 3,003 feet.

Historic Use wells are generally limited to producing the maximum 

amount of groundwater an owner can prove was beneficially used before the 

effective date of the new Rules. Rules 1.1(16), 8.3(g). In contrast to the other 

categories, the Rules define “Existing Wells” as those wells “for which drilling

or significant development of the well commenced before the effective date of 

these Rules.” Id. at Rules 1.1(12). But the Rules do not establish clear 

production limits for Existing Wells that have no established Historic Use.

On December 8, 2004, six days after the Rules took effect, the City of 

Bryan began drilling Well No. 18 on its 2.7-acre tract of land and completed 

the well ten months later. In June 2006, the City applied for a permit to 

operate Well No. 18 at a production rate of 3,000 GPM. BVGCD conditionally 

granted a permit authorizing production of 4,838 acre-feet annually at a rate 

of 3,000 GPM. Subsequently, with no change in the amount of City land

surrounding the well or the Rules’ formula, the City received an identical 

conditional permit in April 2013.

The basis for these permits under the Rules and constitutional law is 

hotly disputed. Because no groundwater was pumped from the well before the 

3 The formula is: (the square of the product of the average annual production rate in 

gallons per minute times the District spacing requirement between wells) multiplied by pi, 

with the result divided by 43,560. Rules 7.1(2).

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Rules were promulgated on December 2, 2004, it could not be classified as a 

Historic Use Well. BVGCD granted the conditional permits under a 

classification of Well No. 18 as an Existing Well, although its only “existence” 

before the date of the Rules must have been in the form of “significant 

development,” at least on paper. Appellants assert, not unreasonably, that 

Well No. 18 is a New Well; consequently, the Rule 7.1 formula would have

capped the maximum allowable production on the City’s 2.7-acre tract at 192 

GPM. Not only did the City’s well far exceed the Rules’ limitation on acreagebased groundwater production for a New Well, but Fazzino’s property lies

within 3,003 feet of Well No. 18 and therefore within its anticipated cone of 

depression. The City’s well may threaten to dissipate Fazzino’s groundwater.

Fazzino filed a complaint with BVGCD in January 2017, asserting that 

Well No. 18 was not a Historic Use or Existing Well and therefore must adhere

to the production limitations imposed on New Wells. He asked BVGCD to 

initiate proceedings to reduce Well No. 18’s authorized production. After the 

State Office of Administrative Hearings (“SOAH”) found that Fazzino was not 

permitted to assert such a complaint, Fazzino applied for a permit to produce 

3,000 GPM from a New Well on his 26-acre property in order to “offset” the 

production from Well No. 18. Twice, the District advised Fazzino that his 

application was administratively incomplete without proof that he owned or 

controlled sufficient acreage—649 acres—to support production of 3,000 GPM. 

Fazzino acknowledged this deficiency, but he renewed the permit request to 

offset production from Well No. 18, and requested a variance BVGCD’s spacing 

and production rules. Shortly afterward, BVGCD informed Fazzino both that 

his application had lapsed due to his failure to provide documentation of land 

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ownership, and that BVGCD did not grant variances.4 The Rules provide no 

mechanism to obtain Board action on an administratively incomplete permit.

Stratta is a member of the Board of Directors who became concerned by

what he considered unequal application of the District’s Rules. He requested 

that the agenda for the Board’s March 8, 2018 meeting include discussion of

whether Well No. 18 was a New Well or an Existing Well. The President of the 

Board told Stratta that no such discussion would take place because it might 

affect pending litigation. Another board member, Russ, echoed the President’s 

view that Well No. 18 should not be discussed. Stratta attended the March 8 

meeting, but he signed in as a member of the public and submitted a 

“Registration Form” in his capacity as a Brazos County landowner who wished

to make a public comment on an “open” agenda item. Specifically, Stratta 

wanted to ask the Board to include the subject of the status of Well No. 18 at

its next meeting. He was prohibited from voicing this small request, however, 

on the rationale that “Directors” may not discuss subjects that are not on the 

agenda, even though “Public Comment” on “non-agenda items” was specified

as an agenda item.

Lacking other recourse, Fazzino sued BVGCD and its Directors in their 

individual and official capacities, alleging that their unequal application of 

BVGCD’s Rules violated his right to equal protection under the law and 

constituted a taking of his property interest in subsurface water beneath his 

4 Appellants dispute this conclusion, pointing out that the cities of Bryan and College 

Station, as well as Wickson Creek Special Utility District, Brazos Valley Water Supply 

Company, and OSR Water Supply Corporations, all maintain wells permitted to produce 

quantities of groundwater that would be disallowed due to inadequate tract size under 

Rules 6.1 and 7.1 without a variance from those rules. In fact, Appellants allege that BVGCD 

consistently ignores the production limitation rules for entities, like those listed, that are led 

or owned by, or employ, present or former Directors of BVGCD. ROA.19; Blue Br. at 5. 

Appellants, however, failed to plea specific facts—e.g. the dates when the wells were created, 

so as to establish them as “New Wells”—that would raise these allegations above being 

wholly conclusory. ROA.19.

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land. Stratta joined the suit and alleged violation of his First Amendment 

rights. In response, BVGCD and its Directors filed motions to dismiss under 

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). BVGCD (hereafter, 

collectively including its Directors) moved for dismissal under 12(b)(1) for lack 

of jurisdiction because: BVGCD is an arm of the state that enjoys Eleventh 

Amendment sovereign immunity; Fazzino failed to exhaust state court 

remedies for his takings claim; and Burford abstention is required on the 

takings claim because Texas law is unsettled as to Fazzino’s property interest 

in the groundwater. BVGCD asserted failure to state a claim because 

Fazzino’s property interest in groundwater is not “clearly established,” his 

claims against the Directors are barred by qualified immunity, and Stratta’s 

right to speak, as a Board member, is regulated by the Texas Open Meetings 

Act (“TOMA”) and in any event not clearly established.

The district court was persuaded by all of these arguments, granted the 

Rule 12(b)(1) dismissal without prejudice and the Rule 12(b)(6) motion with 

prejudice, and entered judgment. This appeal followed.

STANDARD OF REVIEW

We review a district court’s dismissal orders under Rules 12(b)(1) and 

12(b)(6) de novo. Griener v. United States, 900 F.3d 700, 703 (5th Cir. 2018);

Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (5th Cir. 2005); Ysleta Del 

Sur Pueblo v. Laney, 199 F.3d 281, 285 (5th Cir. 2000). When reviewing 

12(b)(1) dismissals, “we take the well-pled factual allegations of the complaint 

as true and view them in the light most favorable to the plaintiff.” Lane v. 

Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). Applying the same standard 

as the district court, we may consider: “(1) the complaint alone; (2) the 

complaint supplemented by undisputed facts evidenced in the record; or (3) the 

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complaint supplemented by undisputed facts plus the court’s resolution of 

disputed facts.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

On appeal from a Rule 12(b)(6) dismissal, we consider the allegations set 

forth in the complaint and any documents attached to the complaint. Kennedy 

v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004). A

plaintiff’s complaint “must contain sufficient factual matter, accepted as true, 

to state a claim to relief that is plausible on its face.” Phillips v. City of Dallas, 

Tex., 781 F.3d 772, 775–76 (5th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009)) (internal quotation marks omitted). A claim is facially 

plausible if the pleaded factual content “allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 

(2007)).

DISCUSSION

Appellants filed suit under 42 U.S.C. § 1983 alleging that BVGCD 

violated Fazzino’s equal protection right and has taken his property without 

compensation, and Stratta asserts that BVGCD violated his First Amendment 

right to free speech. The district court held that it lacked jurisdiction over 

claims against BVGCD because the district is an “arm of the state” immune 

from federal suits as a sovereign under the Eleventh Amendment (and its 

Directors are derivatively immune), (2) Fazzino’s takings claim was not ripe 

according to Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of 

Johnson City, 473 U.S. 172, 186, 194 (1985), and (3) the takings claim was 

subject to Burford abstention because exactly what protectible rights Fazzino

has in groundwater subject to regulation by BVGCD is an unsettled question 

of Texas law. Burford v. Sun Oil Co., 319 U.S. 315 (1943). Granting the 

Rule 12(b)(6) motion to dismiss for failure to state a claim with prejudice, the 

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court held that without clearly established rights to groundwater, Fazzino’s 

equal protection claim cannot succeed on the merits and the Directors enjoy 

qualified immunity. Further, Stratta failed to show that BVGCD’s conduct in 

prohibiting him from speaking was objectively unreasonable in light of clearly 

established law. We disagree with each of these conclusions.

I.

A.

Taking the jurisdictional issues first, as we must, the district court 

erroneously concluded that BVGCD is an arm of the State of Texas and 

therefore immune from suit in federal court under the Eleventh Amendment. 

Texas law counsels otherwise, and analytical inconsistencies in this circuit’s 

precedent misled the district court.

Immunity under the Eleventh Amendment extends to any state agency 

that is deemed an “alter ego” or an “arm of the state” such that the State itself 

is the “real, substantial party in interest.” Vogt v. Bd. Of Comm’rs, 294 F.3d

684, 688–89 (5th Cir. 2002) (internal quotation marks and citations omitted). 

The purpose of the Eleventh Amendment is to recognize state sovereignty by 

shielding states, absent their consent or an explicit act of Congress, from 

money judgments assessed in federal court. The Eleventh Amendment does 

not bar suit, though, “if the political entity possesses an identity sufficiently 

distinct from that of the State.” Vogt, 294 F.3d at 689 (internal quotation 

marks omitted). “There is no bright-line test for” ascribing Eleventh 

Amendment Immunity, but the inquiry is meant to determine whether, 

“despite the presence of a state agency as the nominal defendant,” the lawsuit 

is “effectively against the sovereign state.” Id.

In Clark v. Tarrant County, this court identified six important factors 

that should be weighed in this inquiry: (1) whether the state statutes and case 

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law view the agency as an arm of the state; (2) the source of funds for the entity; 

(3) the degree of local autonomy the entity enjoys; (4) whether the entity is 

concerned primarily with local, as opposed to statewide, problems; (5) whether 

the entity has the authority to sue and be sued in its own name; and 

(6) whether the entity has the right to hold and use property. Clark v. Tarrant 

Cty., Texas, 798 F.2d 736, 744–45 (5th Cir. 1986). While no one factor is 

dispositive, the “second Clark factor—the source of the entity’s funding—is the 

weightiest factor” because “[t]he Eleventh Amendment exists mainly to protect 

state treasuries.” United States ex rel. Barron v. Deloitte & Touche, L.L.P., 

381 F.3d 438, 440 (5th Cir. 2004). We consider each of the factors.

1. Characterization in State Law and Case Law

“The first factor we take into account is how the state, through its 

constitution, laws, judicial opinions, attorney general’s opinions, and other 

official statements, perceives the entity in question.” Hudson v. City of New 

Orleans, 174 F.3d 677, 683 (5th Cir. 1999). “If the state characterizes the 

[entity] as an arm of the state, this factor is counted in favor of Eleventh 

Amendment immunity.” Id.

Forty years ago, the Texas Supreme Court, ruling on the question 

whether navigation districts are state agencies or political subdivisions, clearly 

distinguished between the two in three ways. Guaranty Petroleum Corp. v. 

Armstrong, 609 S.W.2d 529, 531 (Tex. 1980). A political subdivision has 

jurisdiction over a portion of the state, while a state agency exercises its 

jurisdiction throughout Texas. The governing members of a political 

subdivision are elected or appointed by locally elected officials, but heads of 

state agencies are elected statewide or appointed by state officers. And 

political subdivisions may assess and collect taxes, a power that state agencies 

lack. The court concluded that “the legislature has consistently recognized 

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these distinctions between departments, boards or agencies on the one hand 

and political subdivisions on the other.” Id. (footnote omitted). The navigation 

district was held to be a political subdivision.

Guaranty Petroleum is relevant here because the navigation district was 

created, exactly like BVGCD, pursuant to Art. XVI, Section 59 of the Texas 

Constitution and, parallel to BVGCD, the navigation district is defined as a 

“district” under the Texas Water Code. The Code defines a “District” as “any 

district or authority created under . . . Section 59, Article XVI, Texas 

Constitution, that has the authority to regulate the spacing of water wells, the 

production from water wells, or both.” TEX. WATER CODE § 36.001(1). Further, 

the TWC defines “political subdivision” to include “a county, municipality, or 

other body politic or corporate of the state, including a district or authority 

created under Section 52, Article III, or Section 59, Article XVI, Texas 

Constitution, a state agency, or a nonprofit water supply corporation created 

under Chapter 67.” TEX. WATER CODE § 36.001(15). Finally, as was the case 

with the navigation district, the BVGCD is run by officials appointed by county 

officeholders, its jurisdiction is not statewide but covers only two counties, and 

it may assess and collect taxes.

Despite this guidance from the Texas Supreme Court, federal case law 

has diverged when analyzing the Clark factors. To be sure, “comparisons 

[between like entities] cannot substitute for a careful examination of the 

particular entity at issue.” Sw. Bell Tel. Co. v. City of El Paso, 243 F.3d 936,

938 (2001) (quoting McDonald v. Board of Miss. Levee Comm’rs, 832 F.2d 901, 

908 (5th Cir. 1987)) (internal quotation marks omitted). In Southwestern Bell, 

a water improvement district unsuccessfully claimed Eleventh Amendment 

immunity by resting on faulty precedent—from this court. Id. at 938–39. This 

court had to explain that pursuant to Clark, and a line of cases preceding 

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Clark, an entity is not an arm of the state “simply because it is a creature of 

state law and a political subdivision of the state;” such a “conclusion would 

entirely obviate the arm-of-the-state analysis” such that “every entity claiming 

Eleventh Amendment immunity is a ‘creature’ of some state law.” Id. at 939. 

Whether entities are created under the same law—e.g. the Texas Water Code 

or Article XVI, Section 59 of the Texas Constitution—cannot be the sole or 

sufficient factor when determining immunity. “[S]uch a test is no test at all.” 

Id. at 940.

Most political subdivisions, in fact, are “not entitled to Eleventh 

Amendment immunity.” Sw. Bell, 243 F.3d at 939. Southwestern Bell

thoroughly criticized and rejected as fundamentally inconsistent with our 

earlier precedent the cases that Appellees here rely on for their conclusion 

that BVGCD is an arm of the state. See Kamani v. Port of Houston Authority, 

702 F.2d 612 (5th Cir. 1983); Pillsbury Co. v. Port of Corpus Christi Authority, 

66 F.3d 103 (5th Cir. 1995). The Southwestern Bell court explained that 

“Kamani was an admiralty action in which the court stated without analysis 

that the Port of Houston Authority was ‘a “creature of state law and a political 

subdivision of the State of Texas”’ entitled to Eleventh Amendment immunity,” 

and “Pillsbury was a breach-of-contract action in which the court held that the 

Port of Corpus Christi Authority was factually and legally indistinguishable 

from the Port of Houston Authority, and was thus entitled to immunity under 

Kamani”. Sw. Bell, 243 F.3d at 938–40 (internal citations omitted). In light of 

Southwestern Bell, those two cases may not be relied on.5

5 The district court’s citation of Celanese Corp. v. Coastal Water Auth., 475 F.Supp. 2d 

623 (S.D. Tex. 2007) is also inapt. While the authority in that case (the “CWA”) was created 

pursuant to Art. XVI, Sec. 59 of the Texas Constitution to regulate water resources, the CWA 

is critically distinguishable from the instant GCD because several members of its Board are 

appointed by the governor and confirmed by the state Senate, imparting considerable direct 

state influence on its operations. Celanese, 475 F.Supp. 2d at 634. Moreover, unlike BVGCD, 

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The district court also relied on a Texas appellate case for the proposition 

that an underground water conservation district is “an arm of the state created 

to administer the enumerated governmental powers delegated to it.” Lewis 

Cox & Sons, Inc. v. High Plains Underground Water Conserv. Dist. No. 1, 

538 S.W.2d 659, 662 (Tex. Civ. App.—Amarillo 1976). But the court overlooked 

what immediately followed: “[a]s constituted, the water district exists and 

functions as a governmental agency, a body politic and corporate, and stands 

upon the same footing as counties and other political subdivisions of the state.” 

Lewis Cox, 538 S.W.2d at 662 (internal citations omitted). Other case law 

besides Guaranty Petroleum characterizes water management entities, like 

that in Lewis Cox, as “political subdivisions” that “stand upon the same footing 

as a county.” South Plains Lamesa R.R., Ltd. v. High Plains Underground 

Water Conservation Dist. No. 1, 52 S.W.3d 770, 774 (Tex. App.—Amarillo 2001, 

no pet.); see also Coates v. Hall, 512 F.Supp.2d 770, 778 (W.D. Tex. 2007); 

Sullivan v. Chastain, 2005 WL 984348, at *7 (W.D. Tex. Apr. 28, 2005). 

Counties, of course, are not entitled to Eleventh Amendment immunity. See, 

e.g., Crane v. State of Texas, 759 F.2d 412, 415 (5th Cir. 1985).

The application of this factor has been unfortunately complicated by our 

case law, but on balance, in light of our decision in Southwestern Bell and state 

law authority, this factor suggests BVGCD is not an arm of the state.

2. Source of Funding

The second Clark factor looks at the source of BVGCD’s funding. We 

have consistently held that the “second factor is given the greatest weight 

because one of the principal purposes of the Eleventh Amendment is to protect 

state treasuries.” Vogt, 294 F.3d at 693; see also Cozzo v. Tangipahoa Par. 

the CWA has the power to operate outside of its geographic boundaries. Act of May 17, 1967, 

60th Leg., R.S., ch. 601 Section 3, Tex. Gen. Laws 1381, 1385.

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Council--President Gov’t, 279 F.3d 273, 282 (5th Cir. 2002); Hudson, 174 F.3d 

at 687 (“It bears repeating that this is the most important factor in our 

Eleventh Amendment arm of the state analysis.”). “In assessing this second 

factor, we conduct inquiries into, first and most importantly, the state’s 

liability in the event there is a judgment against the defendant, and second, 

the state’s liability for the defendant’s general debts and obligations.” Hudson, 

174 F.3d at 687. “The state’s liability for a judgment is often measurable by a 

state’s statutes regarding indemnification and assumption of debts.” Vogt, 

294 F.3d at 693. The Texas Water Code does not explicitly render the state 

liable for judgments against GCDs or their general debts and obligations.

GCD’s are funded by locally assessed taxes and fees. TEXAS WATER CODE

§§ 36.201–250. BVGCD points out that GCDs may receive grants or loans from 

the state, TEXAS WATER CODE §§ 36.158–61, 36.3705–374, and urges that state 

funds may thus be implicated in an action against the district. This 

observation ignores the limited statutory purposes for such infusions of state 

money.6 None of these provisions permit state funds to indemnify or assume 

the debts of BVGCD, nor is there evidence that such grants or loans have ever 

been used to satisfy a judgment.

Indeed, the law speaks to satisfaction of judgments against a GCD in 

only one way, by an order requiring the district’s board “to levy, assess, and 

collect taxes or assessments to pay [judgments].” TEX. WATER CODE

§ 36.066(b). No parallel provision references the state treasury. On the 

contrary, in Edwards Aquifer Authority v. Bragg, the court held that the 

Edwards Aquifer Authority (“EAA”) was responsible for its permitting 

decisions and liable for any judgment. 421 S.W.3d 118, 126–131 (Tex. App.—

6 Some provisions strictly proscribe the use of certain funds while others are largely 

related to startup and research costs. TEXAS WATER CODE §§ 36.158–61. The state is under 

no obligation to provide such funding.

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San Antonio 2013, pet. denied). A judgment was later entered against the EAA 

for over $4.5 million. The EAA satisfied this judgment in full without any 

portion being paid by the state of Texas. And in Edwards Aquifer Authority v. 

Day, the State disclaimed takings liability for the actions of the EAA. 

369 S.W.3d 814, 821 n.24 (Tex. 2012). In Day, the State took the position that 

a takings judgment entered against the EAA would have to be satisfied from 

the EAA’s own coffers. Id.

As a last resort, BVGCD relies on a provision which states, “[t]he Texas 

Water Development Board, the commission, the Parks and Wildlife 

Department, the Texas Agricultural Extension Service, and institutions of 

higher education may allocate funds to carry out the objectives of this chapter.” 

TEXAS WATER CODE § 36.160. Coupled with the statutory statement of 

purpose—GCDs may be created “to protect property rights, balance the 

conservation and development of groundwater to meet the needs of this state, 

and use the best available science in the conservation and development of 

groundwater through rules developed, adopted, and promulgated by a 

district”—the district argues that the Texas Legislature created a mechanism 

for GCDs to obtain funding in the event of an adverse judgment. Id. § 36.0015.

At best, this argument suggests that state agencies may volunteer to pay 

off a judgment debt by means of a grant.7 But the second Clark factor concerns

whether the state is “directly responsible for a judgment” or “indemnif[ies] the 

defendant.” Ex rel. Barron, 381 F.3d at 440. Evaluated against the position 

that similar entities are responsible for their own judgments, this contention 

is virtually frivolous. See Bragg, 421 S.W.3d at 130–31; Day, 369 F.3d at 821 

n.24. In the absence of any meaningful financial relationship between GCDs 

7 Loans could not be used to satisfy a judgment because their statutorily stipulated 

uses are limited to start-up expenses. TEXAS WATER CODE §§ 36.3705, 36.371–374.

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and the Texas treasury, the second factor weighs heavily against finding 

Eleventh Amendment immunity.

3. Degree of Autonomy

“The third factor we look to focuses on the degree of local autonomy the 

entity at issue enjoys.” Pendergrass v. Greater New Orleans Expressway 

Comm’n, 144 F.3d 342, 346 (5th Cir. 1998). “‘In our circuit, . . . the 

determination of an agency’s autonomy requires analysis of the “extent of the 

[entity’s] independent management authority” . . . [as well as] the 

independence of the individual commissioners’ who govern the entity.” Vogt, 

294 F.3d at 694 (quoting Jacintoport Corp. v. Greater Baton Rouge Port 

Comm’n, 762 F.2d 435, 442 (5th Cir. 1985)). Thus, we examine “the scope of 

the entity’s authority over its day-to-day activities” and the “appointment 

process” of its directors. Id. at 695.

The Code grants GCDs broad authority to “make and enforce rules” 

governing groundwater production, preservation, and usage within their 

geographic boundaries. TEX. WATER CODE § 36.101(a). Referring to this 

delegation, the Texas Supreme Court added that districts’ “activities remain 

under the local electorate’s supervision,” and they “have little supervision 

beyond the local level.” Day, 369 S.W.3d at 834. The state’s highest court has 

also observed that the localized GCD structure “permits the people most 

affected by groundwater regulation in particular areas to participate in 

democratic solutions to their groundwater issues.” Sipriano v. Great Spring 

Waters of Am., Inc., 1 S.W.3d 75, 80 (Tex. 1999). BVGCD Directors are 

appointed by the commissioners courts of Robertson and Brazos counties, and 

are thus indirectly accountable to local constituents. The state supreme court 

in Guaranty Petroleum associated this fact with the existence of an 

independent political subdivision. 609 S.W.2d at 531; see Pendergrass, 

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144 F.3d at 347. This court has held that local accountability evidenced 

autonomy. McDonald v. Board of Mississippi Levee Comm’rs, 832 F.2d 901, 

907 (5th Cir. 1987). Nevertheless, “the appointment process is given less 

weight than the scope of the entity’s authority,” Vogt, 294 F.3d at 695.

From another perspective, the primary responsibility of GCDs is to 

develop a local groundwater management plan. TEXAS WATER CODE

§§ 36.0015, 36.1071. In creating this plan, the Texas Water Development 

Board and the Texas Commission on Environmental Quality “provide technical 

assistance” and the Water Development Board must approve the plan. 

§§ 36.1071–1072. Each GCD is obligated to “review the plan annually . . . and 

readopt the plan with or without revisions at least once every five years.” 

§ 36.1072(e). Notably, in Day, the Texas Supreme Court listed these 

interactions while still affirming the essentially local autonomy of GCDs. Day, 

369 S.W.3d at 834.

But in addition, the state auditor and Legislature are required to audit 

GCDs’ operations periodically. TEXAS WATER CODE §§ 36.061, 36.302. If the 

auditor determines that the GCD is not appropriately managing its 

groundwater, the auditor may deem the GCD non-operational and the 

Commission on Environmental Quality must take over to ensure 

comprehensive management of the district. §§ 36.302–303; see also Guitar 

Holding Co., L.P. v. Hudspeth Cty. Underground Water Conserv. Dist. No. 1, 

263 S.W.3d 910, 913 (Tex. 2008) (the state auditor had deemed a GCD to be 

non-operational under Chapter 36). The district court here took these 

relationships as an indication of significant state control.

Several Fifth Circuit cases have held, however, that audit and reporting 

requirements did not justify finding a lack of local autonomy. See Vogt, 

294 F.3d at 694–95 (holding a lack of “supervisory control over the day-to-day 

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operations . . . counsels against Eleventh Amendment immunity” (quotation 

marks omitted)); Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 321 (5th 

Cir. 2001) (“audit requirements are some evidence of state oversight, but they 

are not dispositive with respect to the issue of local control”); McDonald, 

832 F.2d at 907 (Levee Board’s obligation to make an annual report to the 

governor did not outweigh its predominately autonomous actions). It is not 

clear whether any of these cases involved a situation where, as with GCDs, the 

statutory oversight can and has resulted in the state’s exerting control over the 

entity.

When these facts are considered together, the degree of local control and 

potential state intervention at most merely offset each other.

4. Scope of Activity

The fourth factor “properly centers on ‘whether the entity acts for the 

benefit and welfare of the state as a whole or for the special advantage of local 

inhabitants.’” Dallas Area Rapid Transit, 242 F.3d at 321 (quoting 

Pendergrass, 144 F.3d at 347). “Limited territorial boundaries suggest that an 

agency is not an arm of the state,” and “most entities that are entitled to 

Eleventh Amendment immunity have statewide jurisdiction.” Vogt, 294 F.3d 

at 695.

This inquiry is largely geographic. In Vogt, the court held that even

though flooding is a statewide problem, the levee board acted for the “special 

advantage of local inhabitants,” and its powers “may be exercised only within 

clearly defined territorial limits.” Id. And in Hudson, the court “found it highly 

useful to examine the geographic reach of the [entity’s] powers.” 174 F.3d at 

690. In Celanese, however, it was an indication of statewide interest that the 

CWA was authorized to take significant actions inside and outside its 

territorial limits. 475 F.Supp.2d at 634.

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BVGCD’s legal boundaries are coextensive with the boundaries of 

Robertson and Brazos Counties. TEX. SPECIAL DIST. LOC’L LAWS CODE

§ 8835.004. Groundwater conservation districts are authorized to exercise 

their authority only within their territorial boundaries. True, GCDs are 

expected to coordinate with each other and the Texas Water Development 

Board, Day, 369 S.W.3d at 834, but there is no evidence that these entities 

operate in conjunction for the “benefit and welfare of the state as a whole.” 

Vogt, 294 F.3d at 695. Appellees’ contention that water conservation is 

“undeniably a statewide concern” is unavailing because the scope of authority

rather than the scope of concern is controlling. The fourth factor cuts against 

BVGCD’s entitlement to Eleventh Amendment immunity.

5. Remaining Factors

Both parties and the district court agree that the remaining factors—the 

authority to sue and be sued in its own name and the right to hold and use 

property—weigh against granting immunity. See TEX. WATER CODE §§ 36.251, 

36.105.

On balance, five of the six Clark factors weigh against finding BVGCD is 

an arm of the state of Texas for which Eleventh Amendment immunity is 

appropriate. Most important, funds from the Texas treasury will not be used 

to satisfy a judgment against the entity. The Directors are likewise not entitled 

to assert such immunity. The district court erred in dismissing the 

landowners’ action for lack of jurisdiction on this basis.

B.

Relying on Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of 

Johnson City, 473 U.S. 172 (1985), the district court dismissed Fazzino’s 

takings claims as unripe because he had neither received a final decision 

regarding the application of the challenged regulations nor sought

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compensation for the alleged taking in state courts. This holding has become

moot after the Supreme Court overturned Williamson County. In Knick v. 

Twp. Of Scott, 139 S. Ct. 2162 (2019), the Court held that “the property owner 

has suffered a violation of his Fifth Amendment rights when the government 

takes his property without just compensation, and therefore may bring his 

claim in federal court under § 1983 at that time.” Id. at 2168 (emphasis added). 

Further, “[t]he availability of any particular compensation remedy, such as an 

inverse condemnation claim under state law, cannot infringe or restrict the 

property owner’s federal constitutional claim.” Id. at 2171. The Court then

explicitly disavowed Williamson County and its state litigation requirement: 

“Williamson County was not just wrong. Its reasoning was exceptionally ill 

founded and conflicted with much of our takings jurisprudence.” Id. at 2178.

Based on Knick, Fazzino’s takings claim is ripe for adjudication because 

Fazzino fully pursued the administrative remedies available to him before 

filing this action.

C.

The district court held Fazzino’s takings claim subject to Burford 

abstention, but the following analysis will also necessarily apply to the equal 

protection claim that is not barred by Eleventh Amendment immunity. “[W]e 

review an abstention ruling for abuse of discretion, but ‘we review de novo 

whether the requirements of a particular abstention doctrine are satisfied.’” 

Aransas Project v. Shaw, 775 F.3d 641, 648 (5th Cir. 2014) (quoting Romano v. 

Greenstein, 721 F.3d 373, 380 (5th Cir. 2013)). Because the exercise of 

discretion must fit within the specific limits prescribed by the particular 

abstention doctrine invoked, “[a] court necessarily abuses its discretion when 

it abstains outside of the doctrine’s strictures.” Webb v. B.C. Rogers Poultry, 

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Inc., 174 F.3d 697, 701 (5th Cir.1999); see also Texas Ass’n of Bus. v. Earle, 

388 F.3d 515, 518 (5th Cir. 2004).

Burford abstention is an “extraordinary and narrow exception to the 

duty of the District Court to adjudicate a controversy properly before it.” 

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728, 116 S. Ct. 1712, 1727 

(1996). “Burford allows a federal court to dismiss a case only if it presents 

‘difficult questions of state law bearing on policy problems of substantial public 

import whose importance transcends the result in the case then at bar,’ or if 

its adjudication in a federal forum ‘would be disruptive of state efforts to 

establish a coherent policy with respect to a matter of substantial public

concern.’” Id. at 726–27, 116 S. Ct. at 1726. The decision to exercise Burford

abstention must be weighed against federal courts’ “virtually unflagging 

obligation . . . to exercise the jurisdiction given them” by Congress. Colorado 

River Water Cons. Dist. v. United States, 424 U.S. 800, 821, 96 S. Ct. 1236, 

1248 (1976).

Burford itself involved a suit to enjoin the enforcement of an order of the 

Texas Railroad Commission, which at that time enforced a detailed regulatory 

scheme involving complicated oil and gas issues. Burford, 319 U.S. at 325–26, 

63 S. Ct. at 1103. The Court admonished that federal courts should be 

reluctant to get involved in inherently local matters involving the management 

of state interests covered by a complex regulatory scheme, where the inevitable 

result would be “[d]elay, misunderstanding of local law, and needless federal 

conflict with the State policy.” Id. at 327, 63 S. Ct. at 1104.

Five factors govern a federal court’s decision whether to abstain under 

Burford: “(1) whether the cause of action arises under federal or state law; 

(2) whether the case requires inquiry into unsettled issues of state law or into 

local facts; (3) the importance of the state interest involved; (4) the state’s need 

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for a coherent policy in that area; and (5) the presence of a special state forum 

for judicial review.” Aransas Project v. Shaw, 775 F.3d 641, 649 (5th Cir. 2014) 

(quoting Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314 (5th Cir. 

1993)). The district court cited this standard correctly and found that all five 

factors militated in favor of abstention. We disagree.

The court had to acknowledge that because Fazzino’s § 1983 claims 

allege constitutional violations, the first factor is satisfied in favor of federal 

jurisdiction. See Romano v. Greenstein, 721 F.3d 373, 380 (5th Cir. 2013). But 

it joined this factor with the second factor and found the “unsettled issue” “that 

state courts, including the Texas Supreme Court, have been wrestling with for 

years,” as having to do with the applicability of Texas oil and gas common law 

to groundwater regulation by GCDs. As will be seen in the next section, we do 

not view this case in the same overgeneralized terms and find Fazzino’s claims 

sufficiently precise under federal and state law to move forward. In the 

briefest terms, the Texas Supreme Court reaffirmed in Day that groundwater 

is owned in place by the surface landowner, and the EAA’s (and by necessary 

implication, GCDs’) regulatory provision affording landowners a “fair share” of 

groundwater confers property rights that may be enforced in takings law and 

under doctrines of equal protection. Day, 369 S.W.3d at 830. In this highly 

analogous context, it is no extension of state law to echo Day’s conclusion.8

Regarding the third factor, “[t]he regulation of water resources is . . . a 

matter of great state concern.” Sierra Club v. City of San Antonio, 112 F.3d 

789, 794 (5th Cir. 1997). In light of the severe droughts that periodically strike 

8 The cases cited by the district court in favor of abstention for similar issues of 

“unsettled state law” predate Day and thus are of little support. See Williamson v. Guadalupe 

Cty. Groundwater Cons. Dist., 343 F.Supp.2d 580 (W.D. Tex. 2004); Coates v. Hall, 

512 F.Supp.2d 770, 780 (W.D. Tex. 2007) (“[T]he Texas Supreme Court has not addressed the 

scope of a landowner[’]s cognizable property interest in groundwater beneath their [sic] land.”

(quotation marks omitted)).

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the state and the anticipated growth in Texas’s water needs, the state’s 

interest is only increasing.9 This factor favors abstention to the extent that, 

unlike our decisions in Aransas Project and Romano, there is no strong, 

countervailing federal interest. Aransas Project, 775 F.3d at 651; Romano, 

721 F.3d at 380. Nevertheless, the relief Fazzino seeks diminishes the 

importance of this factor. In contrast to Sierra Club, in which the plaintiff 

sought to enjoin the EAA to reduce groundwater withdrawals, and Wilson, 

where the plaintiff sought refunds for unconstitutional rate increases on behalf 

of a class, Fazzino asks that BVGCD simply apply its rules equally to 

landowners within its purview or provide adequate compensation to him. 

Compare Sierra Club, 112 F.3d at 798 with Wilson, 8 F.3d at 313. His lawsuit 

therefore poses little threat to the general state interest.

The fourth factor looks at the state’s need for a coherent policy in 

regulating groundwater. This factor “is intended to avoid recurring and 

confusing federal intervention in an ongoing state scheme.” Wilson, 8 F.3d at 

315. But Burford “does not require abstention whenever there exists [complex 

state administrative processes], or even in all cases where there is a potential 

for conflict with state regulatory law or policy.” NOPSI v. Council of City of 

New Orleans, 491 U.S. 350, 362, 109 S. Ct. 2506, 2515 (1989) (quotation marks 

omitted). Nor would a federal judgment here interfere with the coherence of 

state policy. GCDs are designed to be decentralized and fragmentary in order 

to offer local control over groundwater resources. There are roughly 100 GCDs 

in Texas, but nearly two-thirds of them oversee territory coextensive with a 

single county. Each GCD designs and implements its own rules under a 

9 The Texas House Committee on Natural Resources observed, “[i]n recent years . . . 

severe drought coupled with a growing population has caused pressure to grow on 

groundwater resources.” H. Comm. on Nat. Res., Interim Rpt. 84th Leg. at 15 (Tex. Jan 

2015). “What was once used mainly in times of emergency, is fast becoming the preferred 

method of water supply in this state.” Id.

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general legislative framework subject ultimately to the local electorate. The 

existence of some coordination and state oversight does not transform a 

decentralized system of regulation into a comprehensive one, nor does 

Fazzino’s lawsuit threaten this regulatory scheme any more than a takings 

judgment secured by the Braggs against EAA. Bragg, 421 S.W.3d at 131. This 

factor weighs against abstention.

Finally, we consider the state forum for judicial review. GCD decisions 

are reviewed in state court. Those lawsuits are filed against local GCDs, not a 

state agency, and maintained in the county where the district is located. TEX.

WATER CODE § 36.251. Accordingly, “there is no special state forum for judicial 

review.” Romano, 721 F.3d at 380.

The BVGCD is no Texas Railroad Commission, and the federal court 

should not have abstained from the constitutional issues raised by Fazzino. 

The claims do not delve into unduly complex issues of state law, the state 

concerns that are implicated are not overriding in light of the remedy sought,

no state law would be usurped by a federal decision, and statewide processes 

or regulatory regimes would not be disrupted. The district court abused its 

discretion in deciding to abstain under Burford.

II.

Having rejected the jurisdictional objections to this litigation, we turn to 

the merits. The district court dismissed Fazzino’s takings and equal protection 

claims because it believed that they rested on unsettled questions about the 

application of oil and gas law to the landowner’s rights in the groundwater 

beneath his property. As we noted above, this formulation of Fazzino’s claim 

is at too high a level of generality. BVGCD’s briefing compounds this error by 

asserting that to adopt Fazzino’s position would require the federal court to 

completely assimilate Texas oil and gas law to groundwater regulation. This

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position is disavowed by Fazzino, unnecessary to adjudicate here, and amounts 

to a bright red herring.

It is correct, however, that Fazzino’s rights as a property owner are a 

creature of state law. Thus, his property rights constitute whatever he has 

that the BVGCD may not constitutionally “take” without compensation, and 

they provide the baseline by which to determine whether he has been treated 

“unequally” by the district vis a vis the City’s permit. Fortunately, Texas law 

is not unsettled as to the landowner’s basic rights. The Texas Supreme Court 

plainly held in Day that a landowner’s property rights include the ownership 

of groundwater in place beneath his acreage, and such ownership right is 

subject to takings claims. The court stated at the outset that it would decide 

“in this case whether land ownership includes an interest in groundwater in 

place that cannot be taken for public use without adequate compensation 

guaranteed [by the Texas Constitution]. We hold that it does.” Day, 

369 S.W.3d at 817. Further, as the court recognized, the TWC reinforces its 

conclusion by providing that “[n]othing in this code shall be construed as 

granting the authority to deprive or divest a landowner . . . of the groundwater 

ownership and rights described by this section.” TEXAS WATER CODE

§ 36.002(c). With a cogent observation, the court rebuffed an argument, rather 

like BVGCD’s argument here, that groundwater rights by their nature are “too 

inchoate” to merit constitutional protection: the intolerable extreme of that 

argument would allow a regulator to deprive the property owner of all his 

groundwater rights. Day, 369 S.W.3d at 832–33. The court instead restated 

that “[g]roundwater rights are property rights subject to constitutional 

protection, whatever difficulties may lie in determining adequate 

compensation for a taking.” Id. at 833.

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What is “unsettled” about Day’s interpretation of the common law and 

statutory rights of groundwater owners? Indeed, it is BVGCD, not Fazzino,

that would “unsettle” Texas law by asking the federal court essentially to 

reconsider Day and dramatically reduce the constitutional rights of 

landowners to the groundwater in place.

Neither the state Supreme Court nor the legislature is blind to 

differences between groundwater and oil and gas reserves that may require 

legal distinctions to be drawn. See, e.g., id. at 830–31, 840–41. Still, the court 

has explained, “[c]ommon law rules governing mineral and groundwater 

estates are not merely similar; they are drawn from each other or from the 

same source.” Coyote Lake Ranch v. City of Lubbock, 498 S.W. 3d 53, 64 (Tex. 

2016). This common parentage led the court in Day to analogize the correlative 

rights as between landowners in common subsurface reservoirs, whether of 

minerals or water, as being recognized both at common law and more 

particularly through state regulation that “afford[s] landowners their fair 

share of the groundwater beneath their property.” Day, 369 S.W.3d at 830; see 

also Elliff v. Texon Drill. Co., 210 S.W.2d 558, 562-63 (Tex. 1949).

Notably, the TWC “requires groundwater districts to consider several 

factors in permitting groundwater production, among them the proposed use 

of water, the effect on the supply and other permittees, [and] a district’s 

approved management plan.” Day, 369 S.W.3d at 841 (citing TEXAS WATER 

CODE § 36.113(d)(2)–(4)). Affording groundwater owners their fair share “must 

take into account factors other than surface area,” the historic metric for an oil 

and gas owner’s fair share. Id. But concerning Fazzino’s takings claim, it 

seems highly pertinent, notwithstanding the statutory list of factors, that 

BVGCD opted for Rules based on spacing and production limits plus the 

water’s proposed or historic use. Fazzino’s allegation is that by permitting the 

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City of Bryan to drain water from an area with a 3003 ft. radius, far outside 

its surface ownership and including surface area of Fazzino’s property, the 

BVGCD has “taken” his groundwater in place without compensation. The task 

of the district court will be to assess, as the state supreme court did in Day, 

whether the groundwater scheme effectuated by BVGCD’s Rules promulgated 

in December 2004 has resulted in a taking of Fazzino’s interest. Id. at 838. 

That this task may be challenging is not the same as concluding it is infeasible. 

See Bragg, 421 S.W.3d at 153 (affirming judgment against the Authority for 

“taking” of landowners’ property).

Likewise, Fazzino’s equal protection claim alleges sufficiently that 

BVGCD unequally applied its Rules by treating municipalities, like the City of 

Bryan, as exempt from the production limits required by the Rules’ surface 

area formula while rigorously enforcing those limits against Fazzino. The 

district court discussed this claim only in terms of qualified immunity for the 

Board, and in that respect held that Fazzino’s right to equal protection, if any, 

was not clearly established because GCDs have broad discretionary authority 

in framing and implementing groundwater production rules. The court 

dismissed the Board members for failure to state a claim on this basis. In light 

of our rejection of BVGCD’s jurisdictional objections, and the preceding 

discussion of Fazzino’s property rights, this analysis is wanting.

A class-of-one equal protection claim is based on two factors: whether the 

plaintiff was “intentionally treated differently from others similarly situated,”

and whether there was a “rational basis” for this difference. Village of 

Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lindquist v. City of Pasadena, 

669 F.3d 225, 233 (5th Cir. 2012).

Lindquist disavowed any precise formula to determine whether a 

plaintiff is similarly situated to comparators, holding instead that “the full 

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variety of factors that an objectively reasonable . . . decisionmaker would have 

found relevant” must be considered. 669 F.3d at 234. Further, “the plaintiff’s 

and comparators’ relationships with the ordinance at issue will generally be a 

relevant characteristic for purposes of the similarly-situated analysis.” Id. 

Pertinent here, when creating rules, GCDs must consider “groundwater 

ownership and rights”; “the public interest”; and “develop rules that are fair 

and impartial.” TEX. WATER CODE § 36.101(a)(2)–(4). Day held that one 

purpose of regulating groundwater is ensuring that owners in a common 

reservoir receive their fair share. Day, 369 S.W.3d at 840. BVGCD implicitly 

accepted this position by setting groundwater production limits based on a 

spacing and production formula. Thus, Fazzino’s equal protection claim is not 

judged against the backdrop of “unsettled” questions of Texas law, but against 

the precise regulations enacted and enforced by BVGCD in this case.

Fazzino alleges that BVGCD intentionally treated the City differently in 

two ways. First, the district mischaracterized Well No. 18 as an Existing Well 

although it was not completed for ten months after the Rules were 

promulgated. Fazzino contends the well had to be a New Well under the 

district’s Rules and therefore subject to its spacing and production limits. The 

Texas Supreme Court rejected a similar misapplication of a GCD’s regulations 

that deviated from the district’s enabling statute in Guitar Holding Co. v. 

Hudspeth Cty. Underground Water Cons. Dist. No. 1, 263 S.W.3d 910, 917–18

(Tex. 2008). Additionally, Fazzino alleges, BVGCD ignored its land ownership, 

spacing and production limits for Well No. 18 while enforcing them rigorously 

against him. The results of the preference for the City’s well are dramatic. 

Based on its land ownership, the City’s well should have been limited to 

pumping 192 GPM, not 3000 GPM as authorized, and its annual production 

should have been about 315 acre-feet, not 4,838 as authorized by BVGCD. In 

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contrast, the district agreed to permit Fazzino a New Well under Rule 7.1 for 

192 GPM and 315 acre-feet per year based on his 26-acre tract.

Fazzino additionally asserts there was no rational basis for the district’s 

differential treatment of him, and he implies the intentionality of the district’s 

efforts based on its preference for, and the relations of its Board members to,

the cities within the BVGCD. These allegations of disparity and intentional 

conduct are sufficient to require further development rather than dismissal on 

the pleadings. Because neither BVGCD nor its Board was required to respond 

on the merits, the substance of these allegations must be tested in discovery 

and further proceedings. For now, the court’s Rule 12(b)(6) dismissal must be 

reversed as to all defendants.

III.10

Stratta insufficiently pleaded that BVGCD and its Board of Directors 

(collectively, “Defendants”) violated Stratta’s First Amendment right to free 

speech. Given Stratta’s status as a member of the Board, he was governed by 

the Texas Open Meetings Act (“TOMA”). As such, he did not have the same 

rights as the “public” under the particular circumstances. We therefore affirm 

the district court’s judgment dismissing Stratta’s First Amendment claims.

Stratta’s First Amendment claim revolves around TOMA’s notice 

requirement, TEX. GOV’T CODE ANN. § 551.041, and its notice exception 

provision, id. § 551.042. We have already upheld TOMA as a constitutional, 

content-neutral time, place, or manner restriction on an individual’s First 

Amendment right. Asgeirsson v. Abbott, 696 F.3d 454, 462 (5th Cir. 2012).11 

10 Judge Smith and Judge Haynes join Part III in full. Judge Jones writes separately 

in dissent.

11 Because free speech restrictions under TOMA do not violate the First Amendment, 

free speech cases that arise under TOMA are distinguishable from free speech cases that do 

not. As such, cases holding that a governmental body violated a member’s First Amendment 

right to free speech for non-TOMA reasons are inapplicable here. See, e.g., Wilson v. Hous. 

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Thus, if TOMA prohibited Stratta from requesting during the Board meeting’s 

public comment period on non-agenda items that the Board add a topic to the 

next meeting’s agenda, then Stratta’s First Amendment rights were not 

violated when he was barred “as a member of the public” from saying whatever 

he wanted at the Board meeting.

A governmental body, such as the Board, must give written notice before 

each meeting. Id. § 551.041. But such notice is not required in one instance:

(a) If, at a meeting of a governmental body, a member of the 

public or of the governmental body inquires about a subject for 

which notice has not been given as required by this subchapter, 

the notice provisions of this subchapter do not apply to:

(1) a statement of specific factual information given in 

response to the inquiry; or

(2) a recitation of existing policy in response to the 

inquiry.

(b) Any deliberation of or decision about the subject of the 

inquiry shall be limited to a proposal to place the subject on the 

agenda for a subsequent meeting.

Id. § 551.042. This exemption does not permit Stratta, as a member of a 

governmental body, to place an unnoticed issue before the Board.12

The exemption’s “purpose is to authorize a governmental body to make 

a limited response to an inquiry about a subject not included on the posted 

notice and to prevent it from engaging in ‘deliberation’ or making a ‘decision’

about the subject matter of the inquiry.” Hays Cty. Water Planning P’ship v. 

Hays Cty., 41 S.W.3d 174, 181 (Tex. App.—Austin 2001, pet. denied); see also

Tex. Att’y Gen. Op. No. JC-169 (2000), at 5.

Cmty. Coll. Sys., 935 F.3d 490, 497–500 (5th Cir. 2020), petition for reh’g filed, Case No. 19-

20237 (5th Cir. April 7, 2020) (holding that a governmental body’s censure of one of its 

members for violating its bylaws was an unlawful restriction on the member’s free speech 

rights).12 Stratta himself thought so because he signed in as a “member of the public” to make 

this point.

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TOMA provides this exemption because “public comment sessions 

provide an opportunity for citizens to speak their minds on an unlimited 

variety of subjects” and a governmental body cannot be expected “to divine or 

foresee the myriad of matters its constituents wish to bring to its attention.” 

Tex. Att’y Gen. Op. No. JC-169, at 4. Section 551.042 provides an outlet for a 

governmental body to address the public’s concerns without violating the 

notice provision of § 551.041: instead, it may place the subject on the agenda 

for a future meeting. TEX. GOV’T CODE ANN. § 551.042; accord id. § 551.041 

(requiring written notice before a meeting); id. § 551.001(4)(A) (stating that a 

deliberation is a type of “meeting”). It does not allow a member of a 

governmental body to bypass the notice requirements of TOMA by introducing 

a subject that has not been the subject of proper written notice during the 

public comment period of a meeting. Indeed, the court in Hays County held 

that a member of the governmental body in that case could not rely on 

§ 551.042 to circumvent the notice requirement when the member “was not 

responding to an inquiry.”13 41 S.W.3d at 181. Similarly, Stratta was not 

responding to an inquiry; he was making one. Thus, the exemption does not 

apply.14

13 The dissent states that Hays County is distinguishable for a number of reasons. But 

none of those stated reasons mattered to the court’s exemption determination. See Hays Cty., 

41 S.W.3d at 181. The only fact that mattered was whether the member of the governmental 

body was responding to an inquiry; he was not. Id. Thus, the exemption in § 551.042 did not 

apply. Id.

14 The dissenting opinion would hold that § 551.042 permits Stratta “solely to place a 

proposal before the Board that the issue be taken up at a future meeting” because “[i]t is not 

determinative . . . whether Stratta was ‘a member of the public or of the governmental body.’” 

Aside from the fact that Stratta presents his issue as based upon his status as a member of 

the public, the Texas appellate court’s holding in Hays County does not support this 

interpretation of § 551.042. See Hays Cty., 41 S.W.3d at 181. When evaluating issues of state 

law, if there is no final decision on the issue by the state’s highest court, we “defer to 

intermediate state appellate court decisions, unless convinced by other persuasive data that 

the highest court of the state would decide otherwise.” Temple v. McCall, 720 F.3d 301, 307 

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In his brief, Stratta acknowledges that he “intended to make a public 

comment requesting that the Board include the subject of the status of Well 

No. 18 on its next agenda,” and that the “Board prevented Stratta from making 

the request on the basis that they feared it would violate TOMA’s notice 

requirements.”

Although, he disagreed with this analysis, he acknowledges it. Thus, 

Stratta’s argument is based upon his contention that he inquired as a “member 

of the public.” At the meeting, he signed in as a member of the public. His 

brief states his appellate issue as: “Does Stratta have a clearly established 

right to address the board of directors as a member of the public during a period 

reserved for public comment on open agenda items?” Addressing this “member 

of the public” contention, the answer is clearly “no.” “Member of the public” is 

not defined in TOMA, or any other Texas statute. See TEX. GOV’T CODE ANN.

§ 551.001; Austin Bulldog v. Leffingwell, 490 S.W.3d 240, 245 (Tex. App.—

Austin 2016, no pet.) (stating that no Texas statute has defined “member of the 

public”). Texas courts have thus looked to the plain and common meaning of

the term while considering its context. See Leffingwell, 490 S.W.3d at 245; 

accord TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex. 

2011). “When ‘member of the public’ is used in conjunction with an identified 

or identifiable group . . . as it is here with ‘governmental body’ its meaning 

is contextually modified to mean a person who does not belong to the identified 

group.” Leffingwell, 490 S.W.3d at 246. Stratta is a BVGCD Board member. 

He thus is not a “member of the public” when he attends a BVGCD meeting.

Stratta cannot bypass TOMA’s notice requirement by attending a Board 

meeting as a “member of the public.” TOMA does not allow for such action 

(5th Cir. 2013) (internal quotation marks and citation omitted). We thus defer to the Texas 

appellate court’s interpretation of § 551.042. Federal courts should be reluctant to interfere 

in a city council’s conclusion about what Texas law means in contradiction to Texas case law.

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because Stratta is a Board member. TOMA is designed to protect the public 

by making open meetings, including notice of what will be discussed at the 

meetings, the norm. TEX. GOV’T CODE ANN. §§ 551.002, .041. In other words, 

it is designed to protect the public from Board member violations, not to allow 

Board members to circumvent its requirements by calling themselves 

“members of the public.” As a “member of the public,” a panel member could 

appear in the town square and endorse a candidate for public office. But as 

federal judges, we are barred from doing so. See ADMIN. OFFICE OF U.S.

COURTS, CODE OF CONDUCT FOR UNITED STATES JUDGES, Canon 5(a)(2) (2019); 

see also MODEL CODE OF JUDICIAL CONDUCT Canon 4 (AM. BAR ASS’N 2010). 

Even candidates for judge are subject to limitations that “members of the 

public” are not. Cf. Williams-Yulee v. Fla. Bar, 575 U.S. 433, 437 (2015). A 

“member of the public” could comment on a pending criminal trial, but a juror 

in the case could not. See United States v. Albert, 595 F.2d 283, 290 (5th Cir. 

1979) (prohibiting prejudicial private communications between jurors and 

third persons); Chambliss v. State, 633 S.W.2d 678, 682 (Tex. App.—El Paso 

1982), aff’d, 647 S.W.2d 257 (Tex. Crim. App. 1983) (stating the same). The 

list goes on. Thus, whatever Stratta’s rights otherwise may be, they were 

overcome by his status as a Board member, and the Board correctly prevented 

Stratta from speaking at the meeting.15 

In accordance with TOMA’s notice requirement, the Board notified the 

public that the March 8, 2015, meeting would include a public comment period 

on open agenda items. TEX. GOV’T CODE ANN. § 551.041. That agenda item 

was limited to comments by the public, of which Stratta was not included. 

15As a result, there is no need to address the qualified immunity issue. But, assuming 

arguendo that the dissenting opinion is correct that there was a First Amendment violation, 

of course, we agree that Defendants are entitled to qualified immunity on that claim.

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Stratta thus was not permitted under § 551.042 to raise a new topic as an 

agenda item in a future meeting during the existing meeting. Accordingly, we 

affirm the district court’s judgment dismissing Stratta’s First Amendment 

claims.16

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment dismissing

Stratta’s First Amendment claim; REVERSE the dismissal of BVGCD for lack 

of jurisdiction, and REVERSE and REMAND the judgment dismissing all 

other claims and defendants.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

16 The district court dismissed Plaintiffs’ official-capacity claims against Defendants 

for lack of jurisdiction and their individual-capacity claims as barred by qualified immunity. 

However, “[w]e are free to uphold the district court's judgment on any basis that is supported 

by the record.” Zuspann v. Brown, 60 F.3d 1156, 1160 (5th Cir. 1995).

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EDITH H. JONES, Circuit Judge, dissenting in part:

I respectfully dissent from the majority’s conclusion that Stratta was not 

permitted under § 551.042(a)-(b) to inquire about a new subject for the limited 

purpose of placing that subject on the agenda for a subsequent meeting. These 

provisions specify that if “a member of the public or of the governmental body 

inquires about a subject for which notice has not been given,” then “[a]ny 

deliberation of or decision about the subject shall be limited to a proposal to 

place the subject on the agenda for a subsequent meeting.” (Emphasis added). 

The majority hold that (1) Stratta could not make an “inquiry” as a member of 

the governmental body, and (2) Stratta was not permitted to attend the Board 

meeting as a “member of the public.” The plain text of the statute contravenes 

the first conclusion and renders the second conclusion superfluous. By limiting 

the response to an inquiry by a member of the governmental body to placing 

that subject on a subsequent meeting agenda, the statute presupposes the 

permissibility of such an inquiry by a member of the governmental body.1

1 Statutory regulation of a response to an activity short of prohibition presupposes 

that the activity is permissible. The majority does not engage with this principle of statutory 

interpretation. Instead, my colleagues rely on Hays Cty. Water Planning P’ship v. Hays Cty., 

Texas, 41 S.W.3d 174 (Tex. App. 2001), for the proposition that an elected official could not 

rely on § 551.042 to circumvent the notice requirements when the member “was not 

responding to an inquiry.” Id. at 181. The majority omits the pertinent second half of that 

quotation, however. In full, the court stated that the commissioner “was not responding to 

an inquiry by either a member of the public or a colleague on the commissioners court,” 

implying once again that a member of the governmental body may make an inquiry. Id. In 

fact, the court held that “551.042 is clear and unambiguous and relates to ‘inquiries’ from 

members of the public or the governmental body.” Id.

Furthermore, Hays Cty. is distinguishable on numerous grounds. The central holding 

of Hays Cty. is that a commissioner gave a “presentation” for which notice was insufficiently 

given. Id. The commissioner’s remarks went far beyond getting an item placed on the agenda 

for a subsequent meeting. And the argument that the commissioner appeared as a member 

of the public was not even raised until litigation; indeed, the commissioner did not even 

attempt to speak during the public comment period. Id. at 176–77, 181. By contrast, Stratta 

signed into the meeting as a member of the public, attempted to speak during the public 

comment period, and intended only to inquire about the status of Well No. 18.

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Stratta made his request at the meeting either as a member of the 

governmental body or as a member of the public. Because he would have been 

permitted to inquire about placing the status of Well No. 18 on a future agenda 

in either capacity, it is not determinative under this statute whether he was “a 

member of the public or of the governmental body.” Id. Section 551.042(a)-(b) 

expressly supports Stratta’s strategy to place a proposal before the Board, 

which it was then required to debate, solely as to whether to take up this issue 

at a future meeting.

The purpose of TOMA is to guarantee openness in the operation of public 

bodies by reducing non-public discussion and deliberations and giving the 

public access to their activities. The Board members here, however, are 

interpreting TOMA to stifle and discriminate against “open” discussion of 

whether an important issue should be placed on an open meeting agenda. Yet 

“[i]t is axiomatic that the government may not regulate speech based on its 

substantive content or the message it conveys.” Rosenberger v. Rector & 

Visitors of Univ. of Virginia, 515 U.S. 819, 828, 115 S. Ct. 2510, 2516 (1995). 

Stratta’s pleading makes a plausible argument that TOMA was applied here 

in a viewpoint discriminatory fashion. The Board members, sued in their 

official capacity, should be required to defend against Stratta’s charge.

Nonetheless, I would affirm the district court’s conclusion that the 

Board members are qualifiedly immune in their individual capacities from 

liability for any violation of Stratta’s First Amendment rights. The district 

court theorized they could have reasonably believed that denying him the right 

to speak in the public comment period of the meeting was sanctioned by TOMA. 

Under TOMA, a board may place items on an agenda for public discussion but 

may not discuss those items in advance. TEX. GOV’T CODE ANN. § 551.041. The 

district court interpreted this section to mean that if Stratta had debated with 

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fellow Board members whether to discuss the status of Well No. 18 in the 

upcoming meeting, they had foreknowledge of his views such that taking them 

up during the public comment session would have failed the law’s notice 

requirement. The court relied on a Texas Attorney General opinion stating 

that “the use of ‘public comment’ or similar term will not provide adequate 

notice if the governmental body is, prior to the meeting, aware or reasonably 

should have been aware, of specific topics to be discussed.” Op. Tex. Att’y Gen. 

No. JC169 (2000) at 3–4.

For purposes of qualified immunity, the court’s analysis suffices. 

“Qualified immunity protects all but the plainly incompetent or those who 

knowingly violate the law.” Anderson v. Creighton, 483 U.S. 635, 638 (1987) 

(quotation marks omitted).

In sum, I would affirm the court’s grant of qualified immunity to the 

individual Board members but remand Stratta’s claim for a First Amendment 

violation against the Board members in their official capacity.

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