Opinion issued September 5, 2013.

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-12-00640-CV

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AGNES A. AARON; JIMMY L. ALBERTE AND PATRICIA ALBERTE; 

ROBERT L. ANSELMI; MIKE ARGO AND DEDE ARGO; GARY 

ARRANT; ROGER ASHTON; PATRICIA AYERS; ADAM BARR; BILLY 

BOWEN; JAMES ALLEN BROWN; ROBERT BUNKER; MICHAEL 

BURGETT; GILBERT CADE AND PORTIA CADE; JOE WILLIAM 

CANAS; CRISTORAL CARLOS AND BRIDGETTE CARLOS; MARTHA 

JOYCE CASH; DUDLEY CHAMBERS AND LINDA CHAMBERS; 

CHARLES P. CHRISTENSEN; WILLIAM S. DAVIS; JUDY DIETRICH; 

DAVID FAIN AND DANIEL FAIN; SCOTT FLEMING; MELANIE FRICK; 

AUDREY GAMBLE; ALBERT A. GARCIA, JR.; LEONEL GARCIA;

JERRY GARNDER AND GRACE GARDNER; CAROLYN GLOYNA; 

ROBERT GOEBEL; PAUL HAMILTON AND TONI HAMILTON; 

DOUGLAS W. HEINTSCHEL AND JOEL HEINTSCHEL; TOM 

HENDERSON AND SHELLEY HENDERSON; ROY JAMAIL AND MARY 

JAMAIL; TODD JOHNSON AND JENNIFER JOHNSON; DARRYL 

KELLER; JOHNNIE LEGGIO, JR.; ROBERT LISTA AND LINDA LISTA; 

DOUGLAS AND CYNTHIA LONGRON; MARKLE LAND CO., LLC; 

MICHAEL MATHIS; DANIEL KLING MCNEILL; JONATHAN MULLINS 

AND KIMBERLY MULLINS; ND&D INTERESTS, LTD; GARY NIXON; 
2

ALBERT PEREZ AND ELSA PEREZ; HANA PINARD; CURTIS 

PLAGENS; SUSAN PLAUMANN; JOHN D. RENTZ; RICHARD 

ROUNDER AND CLAIRE ROUNDER; ENRIQUE SANCHEZ, JR.; JOE 

SANCHEZ; GARLAND SCHOEN; JAMES SCOTT AND CAROL SCOTT; 

BRAD SINGLETARY; GLENDA SPARKS; LLOYD SPEVACK AND 

DENISE SPEVACK; JIMMY SRADER; SHARON STAFFORD AND O.K. 

STAFFORD; DAVID STAMPS AND CINDY STAMPS; JOHN J. STOUT; 

DON STRONG; STEVE SZABO; VIRGINIA TELLER; HAROLD 

THOMSON AND PATRICIA THOMSON; AMADOR TREVINO; 

BEVERLY VAN ZANDT; MICHAEL VAUGHTERS AND LINDA 

VAUGHTERS; FREEMAN VICKERS AND EMILY VICKERS; ROBERT 

WRIGHT AND STEPHANIE WRIGHT; OSMOND J. YOUNG; AND 

RAMONA ZURSCHMIEDE, Appellants

V.

THE PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, TEXAS, 

Appellee

On Appeal from the County Civil Court at Law No. 4

Harris County, Texas

Trial Court Case No. 977124

MEMORANDUM OPINION

In this inverse-condemnation and intentional-nuisance case, we determine 

whether more than ninety property owners have a right to compensation under 

article I, section 17 of the Texas Constitution for damage to their property resulting 

from noise, light, and air pollution associated with the Port of Houston Authority’s 

operation of a container terminal along the Bayport Ship Channel. Because the 
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property owners have not established constitutionally compensable damages, we 

affirm the trial court’s judgment dismissing the case. 

Background

The Port of Houston is a 25-mile-long complex of diversified public and 

private marine terminals, industries, and facilities. The Port Authority, a political 

subdivision of the State of Texas and a navigation district,1 is charged with 

owning, operating, and developing the Port of Houston’s public marine terminals, 

including the Bayport Container Terminal. The Bayport Terminal supports the Port 

Authority’s handling of containerized cargo in the Gulf of Mexico, which is the 

Port Authority’s core business. 

Construction of the Bayport Terminal began in 2004; presently, the Bayport 

Terminal consists of at least 3320 feet of container dock and a 160-acre container 

yard. Eventually, it will have the capacity to accommodate up to seven container 

ships at one time with 7000 feet of container dock and 375 acres of container yard. 

As explained by the Port Authority’s Vice President of Strategic Planning, 

[t]he movement of containers into the Bayport Terminal begins when 

a vessel docks at the Bayport Terminal. The steamship line contracts 

with an independent stevedoring company, which rents wharf cranes 

from the Port Authority to offload the containers from the vessel. The 

 1 See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(B) (West 2011) (defining 

“governmental unit” to mean “a political subdivision of this state, including any 

. . . navigation district”); City of Seabrook v. Port of Houston Auth., 199 S.W.3d 

403, 404−05 (Tex. App.—Houston [1st Dist.] 2006, pet. dism’d) (explaining 

constitutional authority pursuant to which Legislature created Port Authority).
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wharf cranes are operated by employees of the stevedore company, as 

are yard trucks that move containers from the dock to the container 

stacks. Once at the stacks, containers are picked up by rubber-tire 

gentry cranes (“RTGs”) and placed in line for delivery. The RTGs are 

operated by Port Authority employees who are members of the 

longshoreman’s union. Over-the-road semi-tractors (18-wheelers), 

operated by independent trucking companies, arrive at Bayport 

Terminal, pick up the containers, depart the terminal, and deliver them 

to their final destinations. The exporting process works the same way, 

but in reverse order.

More than ninety property owners in a community north of the Bayport 

Terminal filed a lawsuit against the Port Authority, alleging that its construction 

and operation of the Bayport Terminal generates noise, light, and air pollution that 

“substantially interferes with the use, enjoyment, and benefits of the surrounding 

residential property” and thereby constitutes a taking of their property for which 

compensation is required.2 According to the property owners, the Port Authority’s 

operations violate a local noise-control ordinance, resulting in numerous citations 

(including nine criminal citations) in the past couple of years. 

All of the property owners allege the same harm. Specifically, they allege 

that they are “unable to sleep in the homes during operations [of the Bayport 

Terminal], unable to enjoy their yards due to the noise, light and pollution, and 

unable to maintain normal and routine lifestyles due to the invasion by the Port 

 2 The property owners also filed a second lawsuit in a different trial court against 

the Port Authority, alleging that its operation of the Bayport Terminal constitutes 

negligence under the Texas Tort Claims Act. That second lawsuit is also before 

this Court on appeal of a ruling on a jurisdictional plea. Today, this Court issues 

its opinions in both appeals. 
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[Authority] with its noise, lights, and pollution.” The property owners further claim 

that the value of their properties have been reduced as a result of their proximity to 

the Bayport Terminal. Their petition asserts that the lawsuit can be properly 

maintained as a class action because common legal and factual questions 

predominated and the losses claimed are “almost identical.” 

The Port Authority answered the lawsuit and filed two pleas to the trial 

court’s jurisdiction. One plea argued that the Port Authority retained its 

governmental immunity from suit because the property owners failed to plead a 

valid inverse-condemnation or intentional-nuisance claim by alleging only noncompensable community damages. The other plea disputed whether the property 

owners established that their properties were uninhabitable and no longer suitable 

for residential purposes. After a hearing, the trial court granted both of the Port 

Authority’s pleas and dismissed the property owners’ claims with prejudice. This 

appeal followed.

Standard of Review

The trial court must have subject-matter jurisdiction before it may hear the 

property owners’ case. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 

440, 443 (Tex. 1993). The property owners bore the initial burden of alleging facts 

that affirmatively demonstrated the trial court’s jurisdiction. Id. at 446. The Port 

Authority properly challenged the trial court’s subject-matter jurisdiction in its 
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pleas to the jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 

(Tex. 2000). The purpose of a plea to the jurisdiction is to “defeat a cause of action 

without regard to whether the claims asserted have merit.” Id. It does not involve 

delving into the substance of the property owners’ claims, but rather, examination 

of whether the claims’ merits should be reached. Id. Accordingly, in reviewing the 

trial court’s ruling on the Port Authority’s pleas to the jurisdiction, we construe the 

pleadings liberally in the property owners’ favor and determine if the property 

owners alleged facts that affirmatively demonstrate the trial court’s jurisdiction to 

hear their cause. Villarreal v. Harris Cnty., 226 S.W.3d 537, 541 (Tex. App.—

Houston [1st Dist.] 2006, no pet.). If the pleadings lack sufficient facts to 

affirmatively demonstrate the trial court’s jurisdiction but do not reveal incurable 

defects in jurisdiction, the issue is one of pleading sufficiency, and the property 

owners should be afforded an opportunity to amend or to await further 

development of the case on the merits. Tex. Dept. of Parks & Wildlife v. Miranda, 

133 S.W.3d 217, 226–27 (Tex. 2004). Conversely, if the pleadings affirmatively 

negate the existence of jurisdiction, the property owners should not be afforded an 

opportunity to amend. Id. at 227.

Governmental Immunity and Article I, Section 17

The property owners contend that the trial court has subject-matter 

jurisdiction because the noise, light, and air pollution generated by the Bayport 
7

Terminal substantially interfere with the use and enjoyment of their properties and 

thereby constitute a taking for which compensation is required under article I, 

section 17 of the Texas Constitution. 

Generally, “[g]overnmental immunity protects subdivisions of the State . . . 

from lawsuits and liability, which would otherwise ‘hamper governmental 

functions by requiring tax resources to be used for defending lawsuits and paying 

judgments rather than using those resources for their intended purpose.’” City of 

Houston v. Esparza, 369 S.W.3d 238, 243−44 (Tex. App.—Houston [1st Dist.] 

2011, pet. filed) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 

653, 655−56 (Tex. 2008)). However, article I, section 17 of the Texas Constitution 

waives governmental immunity from suit and liability for inverse-condemnation 

claims. TEX. CONST. art. I, § 17; Burris v. Metro. Transit Auth. of Harris Cnty., 266 

S.W.3d 16, 19−20 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Immunity is 

also waived for intentional-nuisance claims that rise to the level of a constitutional 

taking under article I, section 17. City of Dallas v. Jennings, 142 S.W.3d 310, 311 

(Tex. 2004). Thus, to determine whether the trial court erred in dismissing the 

property owners’ claims on the Port Authority’s plea, we must decide whether the 

property owners have alleged facts that establish their property was damaged in a 

constitutional sense. Whether property has been “damaged” in a constitutional 
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sense is a question of law. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 

932−33 (Tex. 1998). 

A. Article I, section 17 does not require compensation for every injury to 

property 

Although article I, section 17 provides that adequate compensation shall be 

paid to those whose property is “taken, damaged or destroyed for or applied to 

public use,” not all injury to property is a compensable damage. See TEX. CONST.

art. I, § 17; State v. Schmidt, 867 S.W.2d 769, 778 (Tex. 1993). For more than one 

hundred years, “courts have construed Article I, Section 17 to allow recovery only 

if the injury is not one suffered by the community in general.” Felts v. Harris 

Cnty., 915 S.W.2d 482, 484 (Tex. 1996) (citing Gulf, Colo. & Santa Fe Ry. Co. v. 

Fuller, 63 Tex. 467, 470−71 (1885)). In other words, compensation is required 

only for those injuries “peculiar to a given property.” Fuller, 63 Tex. at 470. As the 

Texas Supreme Court explained: 

In the construction of legally authorized public works, it is 

inevitable that benefits will accrue to the property of some persons 

and injury will result to that of others. If the injury that thus results 

from the improvement be only of such nature as is suffered from that 

cause in common with other property in the same community or 

section, the damages thus accruing are deemed merely consequential, 

and no right of action exists. In such cases, it is not considered that the 

property is “damaged” within the contemplation of the constitutional 

provision, and the right to compensation is denied. . . . 

The question in all such cases is resolved by determining 

whether the injury is peculiar to the property in question, or is only 

such as is suffered from the same cause in common with other 
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property in the same section or community; that is, whether the 

property is “damaged” in the true sense of the constitutional 

provision.

Fort Worth Improvement Dist. No. 1 v. City of Fort Worth, 158 S.W. 164, 168−69 

(Tex. 1913); see also Fuller, 63 Tex. at 470 (explaining that “[e]very government 

has the power to construct or to cause to be constructed public works, and in so far 

as such construction works an injury to the public, it can give no one a right to a 

private action.”).3

Similar damage experienced by all or most of the properties in a given 

“community or section is the quintessential notion of community damage” and will 

not support individual property owner’s damage claims. Felts, 915 S.W.2d. at 485.

The property owners urge us not to limit our definition of the community in this 

case to the named property owners; according to them, the Bayport Terminal’s 

operation affects a greater number of properties than are presently the subject of 

this lawsuit or part of the proposed class of approximately 500 property owners. 

 3 The Legislature has codified the community-damage rule for condemnation 

proceedings. TEX. PROP. CODE ANN. § 21.042(d) (West 2011). In estimating the 

injury or benefit to the property owner when a portion of his or her real property is 

condemned, “the special commissioners shall consider an injury or benefit that is 

peculiar to the property owner and that relates to the property owner’s ownership, 

use, or enjoyment of the particular parcel of real property, . . . but they may not 

consider an injury or benefit that the property owner experiences in common with 

the general community . . . .” Id. Courts apply the same rules in condemnation and 

inverse-condemnation proceedings. State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). 
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They suggest that the community extends to the entire City of LaPorte, where their 

properties are located, and certain other areas of Harris, Galveston, and Chambers 

counties. They further argue that even if we limit the community to the properties 

adjoining the Bayport Terminal, the damages suffered are not the same―for 

example, the properties to the South and West of the Bayport Terminal do not 

suffer the same loss of use and enjoyment because they either are undeveloped or 

industrial properties or are buffered by an “extensive levy or bank.” 

The property owners place too much weight on the location of their 

properties. “The concept of community [damage] is not primarily geographical.” 

State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996). “‘Community’ in this context means 

not only where, but, more importantly, what kind. It is the nature of the injury 

rather than its location that is critical in determining whether it is community.” 

Schmidt, 867 S.W.2d at 781. Accordingly, the result in this case turns on whether 

the noise, light, and air pollution claimed by the property owners is suffered by the 

community as a whole or by the property owners in some special or unique way 

and thus is compensable in a constitutional sense. 

B. The property owners’ damages are non-compensable community 

damages 

The property owners seek damages for the loss of use and enjoyment of their 

property due to the protracted invasion of their homes by noise, light, and chemical 

pollutants generated by the Bayport Terminal. Specifically, the property owners 
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allege that the Port Authority’s “ongoing expansion of the Bayport [Terminal] . . . 

increasingly expose[s the property owners] to bright lights in the middle of the 

night, loud banging noises . . . and pollutants from the machinery and ships.” 

More than one Texas court, including this Court, has concluded that the 

noise, light, and air pollution generated by a public work is suffered by the 

community surrounding the public work as a whole. See, e.g., Tex. Dep’t of 

Transp. v. City of Sunset Valley, 146 S.W.3d 637, 647−48 (Tex. 2004) (holding 

that bright lights from highway were not compensable under constitution because 

impact from public works “are compensable only to the extent they are not 

common to the community”); Felts, 915 S.W.2d at 485−86 (“noise emanating from 

a roadway has a similar impact on the community as a whole” and thus was noncompensable, “quintessential” community damage); Cernosek Enters., Inc. v. City 

of Mont Belvieu, 338 S.W.3d 655, 666 (Tex. App.—Houston [1st Dist.] 2011, no 

pet.) (plaintiff alleging drilling of wells destroyed “peace and general welfare of 

the nearby community” and “decrease[d] the property values” failed to 

demonstrate that “injury affects it in some special or unique way that is different 

from the injury suffered by the community at large”); Wilkinson v. 

Dallas/FortWorth Int’l Airport Bd., 54 S.W.3d 1, 17 (Tex. App.—Dallas 2001, pet. 

denied) (concluding that combined impact from noise, pollution, and disruption of 
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daily activities attributable to governmental activities―use of a new airport 

runway―was community damage). 

Although the property owners argue that the noise, light, and air pollution 

they suffer is peculiar to their properties given their proximity to the Bayport 

Terminal, we perceive no meaningful distinction between the property owners’ 

damage allegations and those damages courts have already held to be noncompensable in the construction and operation of other public works. The property 

owners rely on Interstate Northborough Partnership v. Texas, a condemnation case 

in which the Texas Supreme Court concluded that the community-damage rule did 

not bar recovery of “increased-proximity damages.” 66 S.W.3d 213, 223 (Tex. 

2001). There, a commercial property owner sought compensation for the increased 

proximity of its building to a roadway following condemnation of a part of the 

commercial property. Id. at 217. The Court concluded that the commercial 

property was injured in a different way, not just to a different degree, than other 

neighboring properties subject to condemnation for use of the roadway. The 

commercial property owner had demonstrated that the building’s special design 

made its increased-proximity damages special, not community, through allegations 

and proof that the building was the most marketable building in the area, its “parklike” setting due to its position away from the road contributed to the building’s 

appeal and provided a pleasant work environment, and the increased proximity to 
13

the roadway gave an appearance that the building was not safe. Id. at 222−23. The 

property owners’ petition does not allege facts akin to those in Interstate 

Northborough Partnership. The petition contains no allegations that the Bayport 

Terminal affects the property owners’ individual properties in some special or 

unique way different from the community as a whole; rather, the petition focuses 

on injuries the property owners allege are suffered in a nearly identical way by the 

entire neighborhood. 

We also are not persuaded by the property owners’ assertion that they have 

suffered damages like those suffered by owners of property fronting railroad 

tracks. In the historic railroad cases, most occurring before 1900, the Texas 

Supreme Court held that damages from noise, cinders, vibrations, and other 

attendant annoyances provided a basis for compensation. See Gainesville, H. & W. 

R. Co. v. Hall, 14 S.W. 259, 259 (Tex. 1890); Texarkana & N.W.R. Co. v. 

Goldberg, 5 S.W. 824, 826 (Tex. 887); Fuller, 63 Tex. at 472; Gulf, Colo. & Santa 

Fe R.R. Co. v. Eddins, 60 Tex. 656, 660 (1884). The special damages in these

railroad cases arose from the close proximity of the railroad tracks to the properties 

at issue in the lawsuits. Felts, 915 S.W.2d at 486 (distinguishing early railroad 

cases that “correctly concluded that damages affecting all landowners adjacent to 

railroad tracks were special” based on “increased exposure to fire” from claims 

asserting unreasonable interference from impacts shared by community as a 
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whole). As the Port Authority points out, the railroad tracks in the historical cases 

were placed immediately adjacent to homes, created fire hazards, and destroyed 

access to property. Of the properties that are the subject of this lawsuit, the nearest 

property is almost 1000 feet from the Bayport Terminal.

As pleaded, the property owners have experienced noise, light, and air 

pollution that their neighbors also have experienced as a result of the construction 

and operation of the Bayport Terminal. We conclude that the injuries of which the 

property owners complain are, by their nature, a consequence of the Bayport 

Terminal’s operation and are shared by the surrounding area. While some of the 

property owners inevitably are impacted more severely based on the location of the 

properties, the difference is one of degree and not of kind. We thus agree with the 

Port Authority that the damages claimed by the property owners are not 

compensable. The property owners’ class action allegations of injuries shared 

identically among all of the 500 purported class members in the community 

indicates that the deficiencies in their pleadings would not be cured by an 

opportunity to amend. Consequently, we hold that the trial court did not err in 

granting the Port Authority’s plea to the jurisdiction and dismissing the property 

owners’ case.4

 4 We do not address the property owners’ other contentions on appeal―namely, 

whether the trial court erred in (1) granting the Port Authority’s other 

jurisdictional plea on the issue of habitability and (2) dismissing their request for 
15

Conclusion 

We affirm the trial court’s judgment. 

Harvey Brown

Justice 

Panel consists of Justices Jennings, Brown, and Huddle.

 

injunctive relief. Our conclusion that the community damage rule precludes the 

property owners’ inverse-condemnation and intentional-nuisance claims makes it 

unnecessary for us to decide whether the property owners established that their 

properties are uninhabitable. And we do not consider whether the trial court erred 

in dismissing their request for injunctive relief because they did not plead such a 

claim.