NO. 04-15-00297-CV

 

IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT 

AT SAN ANTONIO, TEXAS 

 

HETUL BHAKTA D/B/A BUDGET INN, 

 Appellant,

V.

TEXAS DEPARTMENT OF TRANSPORTATION, 

 Appellee.

 

On Appeal from the 79th Judicial District Court of Brooks County, Texas; 

Cause No. 11-04-15888-CV; Honorable Richard C. Terrell 

 

BRIEF OF APPELLEE 

THE TEXAS DEPARTMENT OF TRANSPORTATION 

KEN PAXTON JOHN SETH JOHNSON 

ATTORNEY GENERAL OF TEXAS State Bar No. 24083259 

 Assistant Attorney General 

CHARLES E. ROY P. O. Box 12548 

FIRST ASSISTANT ATTORNEY GENERAL Austin, Texas 78711-2548 

ATTORNEY GENERAL Telephone: (512) 463-2004 

 Facsimile: (512) 472-3855 

JAMES E. DAVIS john.johnson@texasattorney 

DEPUTY ATTORNEY GENERAL general.gov 

FOR CIVIL LITIGATION 

 

RANDALL K. HILL 

ASSISTANT ATTORNEY GENERAL 

CHIEF, TRANSPORTATION DIVISION 

ATTORNEYS FOR APPELLEE 

 THE TEXAS DEPARTMENT OF TRANSPORTATION 

ORAL ARGUMENT REQUESTED

ACCEPTED

04-15-00297-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

9/23/2015 2:50:44 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 09/23/2015 2:50:44 PM KEITH E. HOTTLE Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

Appellant/Plaintiff:

Trial and Appellate Counsel 

for Appellant:

Appellee/Defendant:

Trial and Appellate Counsel 

for Appellee:

Hetul Bhakta d/b/a Budget Inn

Aloysius Peter Thaddeus, Jr.

State Bar No. 19819500

Vicente Gonzalez

State Bar No. 00798215

V. GONZALEZ & ASSOCIATES, P.C.

121 North 1th Street

McAllen, Texas 78501

The Texas Department of Transportation

Current Appellate Counsel:

John Seth Johnson

State Bar No: 24083259

Susan Desmarais Bonnen

State Bar No: 05776725

Past Trial and Appellate Counsel:

Betsy Johnson

(Former Assistant Attorney General)

State Bar No: 24048253

Michael Ritter

(Former Assistant Attorney General)

State Bar No: 24074960

OFFICE OF THE ATTORNEY GENERAL

TRANSPORTATION DIVISION

P.O. Box. 12548

Austin, Texas 78711
iii

TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL...............................................ii

INDEX OF AUTHORITIES..................................................................v

STATEMENT OF THE CASE...............................................................ix

ISSUE PRESENTED..............................................................................................x 

STATEMENT OF FACTS....................................................................................1 

I. Factual background....................................................................1 

II. Relevant procedural history...........................................................3 

SUMMARY OF ARGUMENT..............................................................4 

ARGUMENT..................................................................................6 

I. Scope and standard of review.........................................................6

A. Sovereign immunity...........................................................6 

B. TxDOT’s Plea to the Jurisdiction............................................6 

C. Additional jurisdiction challenges............................................8 

D. Bhakta’s claims were properly dismissed..................................9 

II. Bhakta’s inverse condemnation claim was properly dismissed................9

A. TxDOT did not have the requisite intent to support a valid takings 

claim...........................................................................10

B. The jurisdictional evidence does not contain a fact issue regarding 

TxDOT’s intent...................................................................................15
iv

C. Any alleged recurrence of flooding is not probative of TxDOT’s 

intent............................................................................17

1. Gragg’s recurrence requirement........................................17

2. Kopplow and Gragg are factually distinguishable....................18

3. Bhakta cannot impute intent to TxDOT through recurrence.........20

D. Bhakta’s allegations against TxDOT additionally fail the public use

requirement necessary for a valid takings claim..........................21

E. TxDOT’s alleged actions did not cause Bhakta’s property 

damage.........................................................................22

F. The jurisdictional defects in Bhakta’s claims are incurable by further 

amendment....................................................................23

III. Bhakta cannot establish a valid waiver of immunity under the Texas Tort 

Claims Act...........................................................................25

A. TxDOT did not operate the alleged motorized equipment...........26

B. Bhakta cannot satisfy Section 101.021’s causal nexus 

requirement...............................................................30

IV. Bhakta cannot assert his nuisance claim in the absence of a valid waiver of 

immunity.....................................................................................................33

PRAYER......................................................................................34

CERTIFICATE OF COMPLIANCE......................................................35

CERTIFICATE OF SERVICE.............................................................35
v

INDEX OF AUTHORITIES

Cases 

Page

Ahart v. Tex. Dep’t of Transp., No. 14-05-00027-CV, 2006 WL 2167223

(Tex. App.—Houston [14th Dist.] Aug. 1, 2006, pet. denied) (mem. op.)......15, 16

AN Collision Ctr. of Addison, Inc. v. Town of Addison, 310 S.W.3d 191

(Tex. App.—Dallas 2010, no pet.)....................................................21, 24

Bell v. City of Dall., 146 S.W.3d 819 (Tex. App. - Dallas 2004, no pet.).......10, 25

Bhakta v. Tex. Dep’t of Transp., No. 04-14-00063-CV, 2014 WL 1499810

(Tex. App.—San Antonio Apr. 16, 2014, no pet.) (mem. op.) (per curiam)........v, 3

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

City of Dall. v. Blanton, 200 S.W.3d 266 (Tex. App.—Dallas 2006, no pet.).......23

Cenizo Corp. v. City of Donna, No. 13-12-00308-CV, 2013 WL 1800270 

(Tex. App.—Corpus Christi Apr. 25, 2013, no pet.)................................22, 23

Harris County Flood Control Dist. v. Kerr, 13-0303, 

2015 WL 3641517 (Tex. June 12, 2015)...................................................14

Church v. City of Alvin, No. 01-13-00865-CV, 2015 WL 3916708

(Tex. App.—Houston [1st Dist.] June 25, 2015, no. pet. h.) (mem. op.).....3, 14, 29

City of Arlington v. State Farm Lloyds, 145 S.W.3d 165 (Tex. 2004)................11

City of Borger v. Garcia, 290 S.W.3d 325 

(Tex. App.—Amarillo 2009, pet. denied)...........................................22, 25

City of Dall. v. Hillis, 308 S.W.3d 526 (Tex. App.—Dallas 2010, pet. denied)...31

City of Dall. v. Jennings, 142 S.W.3d 310 (Tex. 2004)...................................passim

City of El Paso v. Ramirez, 349 S.W.3d 181 

(Tex. App.—El Paso 2011, no pet.)......................................................24

City of Hous. v. Ranjel, 407 S.W.3d 880

(Tex. App.—Houston [14th Dist.] 2013, no pet.)...............................27, 28, 29

City of Keller v. Hall, 433 S.W.3d 708 

(Tex. App.—Fort Worth 2014, pet. denied)..............................................25
vi

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)..............................11, 21

City of Leon Valley v. Wm. Rancher Estates Joint Venture, No. 04-14-00542-CV, 

2015 WL 2405475 (Tex. App.—San Antonio May 20, 2015, no pet.).................8

City of McKinney v. Hank’s Rest. Group, L.P., 412 S.W.3d 102

(Tex. App.—Dallas 2013, no pet.)..........................................................3

City of Midlothian v. Black, 271 S.W.3d 791 (Tex. App.—Waco 2008, no pet.)...14

City of San Antonio v. De Miguel, 311 S.W.3d 22

(Tex. App.—San Antonio 2010, no pet)...................................................6

City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009)........10, 11, 13, 16, 21

City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997)........................................24

City of Van Alstyne v. Young, 146 S.W.3d 846 

(Tex. App.—Dallas 2004, no pet.)........................................................25

Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. 2003)...............6, 30

Dall. Cnty. Mental Health & Mental Retardation v. Bossley,

968 S.W.2d 339 (Tex. 1998)......................... .................................30, 31

Dall. Cnty. v. Logan, 407 S.W.3d 745 (Tex. 2013).........................................8

Ector Cnty. v. Breedlove, 168 S.W.3d 864 

(Tex. App.—Eastland 2004, no pet.).................................................................31, 32

EPGT Texas Pipeline, L.P. v. Harris Cnty. Flood Control Dist., 176 S.W.3d 330

(Tex. App.—Houston [1st Dist.] 2004, pet. dism’d)................................28, 29

Evatt v. Texas Dept. of Transp., No. 11-05-00031-CV, 2006 WL 1349352 

(Tex. App.—Eastland May 18, 2006, pet. denied) (mem. op.)....................13, 17

Galveston Racquet Club, Inc. v. City of Galveston, 178 S.W.3d 167

(Tex. App.—Houston [1st Dist.] 2005, no pet.)................ ........................31

General Servs. Comm’n v. Little-Tex Insulation Co., Inc., 

39 S.W.3d 591 (Tex. 2001)................. ......................................10, 13, 15

Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468 (Tex. 2012)..................6

Howard v. City of Kerrville, 75 S.W.3d 112

(Tex. App.—San Antonio 2002, pet. denied).......................................17, 18
vii

Kopplow Dev., Inc. v. City of San Antonio, 399 S.W.3d 532 (Tex. 2013)....7, 17–19

Karnes City v. Kendall, 172 S.W.3d 624 

(Tex. App.—San Antonio 2005, pet. denied)............................................24

LeLeaux v. Hamshire–Fannett Indep. Sch. Dist., 835 S.W.2d 49 (Tex. 1992)......27

Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012)...............................8, 9

Ryder Integrated Logistics, Inc. v. Fayette County, 

453 S.W.3d 922 (Tex. 2015)...............................................................26

San Antonio Water Sys. v. Overby, 429 S.W.3d 716

(Tex. App.—San Antonio 2014, no pet.).............................2, 12-15, 30–32, 34

Sloan Creek II, L.L.C. v. N. Tex. Tollway Auth., No. 05-14-01456-CV, 

2015 WL 5093318 (Tex. App.—Dallas Aug. 28, 2015, no. pet. h.).....16, 17, 19, 21

State v. Agnew, No. 13-05-00143-CV, 2006 WL 1644678

(Tex. App.—Corpus Christi June 15, 2006, no pet.) (mem. op.)............................13

Tarrant Regional Water District v. Gragg, 151 S.W.3d 546 (Tex. 2004)........17–19

Teague v. City of Dall., 344 S.W.3d 434 (Tex. App.—Dallas 2011, pet. denied)..30

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993)..............6

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)...7, 11, 23

Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 

397 S.W.3d 162 (Tex. 2013)....................................................................................6

Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637 (Tex. 2004).....6, 33

Tex. Highway Dep’t v. Weber, 219 S.W.2d 70 (1949)..............................21, 22

Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864 (Tex. 2000)....30

Tex. Parks & Wildlife Dep’t v. E.E. Lowrey Realty, Ltd., 

235 S.W.3d 692 (Tex. 2007)...............................................................25

Toomey v. Tex. Dep’t of Transp., 01-05-00749-CV, 2007 WL 1153035

(Tex. App.—Houston [1st Dist.] Apr. 19, 2007, no pet................................18
viii

Statutes

Tex. Const. art. I, § 17........................................................................9

Tex. Civ. Prac. & Rem. Code § 101.021(1).........................................passim

Tex. Civ. Prac. & Rem. Code § 101.001(2)............... ................................27
ix

STATEMENT OF CASE

Nature of the Case: This action arises from flood water damage to 

Appellant Hetul Bhakta’s (“Bhatka”) property, for 

which Bhatka filed suit against the Texas 

Department of Transportation (“TxDOT”) and a 

second defendant who is not a party to this appeal,

asserting claims for nuisance, inverse 

condemnation, and negligent operation of motordriven equipment. CR 78–85.

Trial Court: The Honorable Richard C. Terrell, Presiding Judge 

of the 79th Judicial District Court of Brooks 

County, Texas.

Trial Court Disposition: The trial court granted TxDOT’s First Amended 

Plea to the Jurisdiction, and dismissed TxDOT as 

to all of Bhakta’s claims. CR 117.

Prior Court of Appeals 

Proceedings:

Following the trial court’s denial of Bhakta’s

Motion for Reconsideration and Rehearing, 

Bhakta filed an accelerated interlocutory appeal of 

the granting of TxDOT’s First Amended Plea to 

this Court. TxDOT filed a Motion to Dismiss for 

Want of Jurisdiction, asserting Bhakta failed to file 

a timely notice of appeal.

Prior Court of Appeals 

Disposition:

Dismissed. Bhakta v. Tex. Dep’t of Transp., No. 

04-14-00063-CV, 2014 WL 1499810 (Tex. 

App.—San Antonio Apr. 16, 2014, no pet.) (mem. 

op.) (per curiam).
x

ISSUE PRESENTED

Whether the trial court properly granted TxDOT’s First Amended Plea to the 

Jurisdiction.

1

 

1 TxDOT notes that it is difficult to match the issues presented by Bhakta with the arguments in 

the body of Bhakta’s brief, therefore TxDOT presents the sole issue in this case – whether the trial 

court properly granted TxDOT’s First Amended Plea to the Jurisdiction – and addresses what it 

deems to be the issues Bhakta has attempted to raise, as well as other pertinent jurisdictional issues. 
1

TO THE HONORABLE COURT OF APPEALS:

Appellee, the Texas Department of Transportation (“TxDOT”), requests 

affirmance of the trial court’s granting of its First Amended Plea to the Jurisdiction. 

STATEMENT OF THE FACTS

I. Factual background.

Appellant Hetul Bhakta (“Bhakta”) operates a Budget Inn located at 1033 N. 

U.S. Hwy 281 in Falfurrias, Texas. CR 78. Bhakta alleges that his property was 

damaged by flooding on three separate occasions—April 16, 2010, May 25, 2010, 

and an unspecified date in 2012.2 CR 80. Bhakta contends this flooding was the 

result of increased storm-water runoff that in turn resulted from construction work 

on Highway 281 (the “Project”). CR 80–81.

TxDOT was responsible for the design of the Project up to its “letting,” or the 

point upon which contractors bid for the award of the contract to perform the actual 

construction work. CR 139–40. Ballenger Construction Company (“Ballenger”) was 

 

2 To date, Bhakta has not been able to articulate when the alleged third flooding incident 

purportedly occurred (the Third-Amended Petition merely states “in 2012,” while Appellant’s 

brief states “in June of 2012”). CR 80; Appellant’s Br. at 9. No evidence exists in the record 

regarding the date of the alleged 2012 flood event. For example, Defendant Ballenger produced 

evidence of Federal Emergency Management Agency (“FEMA”) “Proof of Loss” forms submitted 

by Bhakta with regard to the April and May 2010 flood events, and in the final judgment, 

subsequently agreed to pay for any property damage from the flood events to the Budget Inn not 

covered by FEMA, without reference to the number of flood events agreed to have occurred. 3rd 

Supp CR 66, 88–185; 1st Supp CR 6. Nonetheless, as discussed in detail below, whether or when 

the third flooding event occurred is irrelevant to the determination of the issues before this Court, 

and this brief assumes arguendo that a third flood did occur in June of 2012. 
2

awarded the Project, and either performed the construction work at issue or 

subcontracted out certain portions of the work.3 CR 36, 41–47, 172, 178–79. 

Bhakta’s asserted claims all relate to the storm-water drainage system on the 

Project. CR 81–83. The TxDOT plans and specifications for the Project called for 

the contractor to maintain a drainage system that conveyed excess rainwater to an 

outfall or discharge point. CR 153–54, 172. Specifically, the TxDOT plans required 

an unbroken sequencing between the highway’s old drainage system and the 

Project’s new drainage system, as a continuous series of pipes was needed in order 

to properly convey the water from the highway to the designated outfall point. CR 

162–64, 171–72. However, despite its contractual responsibility to do so, Ballenger 

failed to maintain the proper connectivity in the drainage system during the Project’s 

construction. CR 156, 165, 161. 

The missing connections in the drainage system caused, at least in part, the 

flooding of Bhakta’s property. CR 161. Other factors may have included a 

combination of the Budget Inn’s location in a low-lying area close to the highway 

and severe storms that produced an extraordinary amount of rainfall. CR 166–67, 

 

3 Ballenger named Leal Construction, Inc. (“Leal”) as a third-party defendant in the underlying 

suit. CR 35–47. While the contract between Ballenger and Leal appears to contemplate the work 

at issue in this appeal, it is unclear from the record whether it was Leal or Ballenger who actually 

performed the work, as Leal ceased work on the Project at some point before its completion. CR 

213. For consistency with Bhakta’s allegations, this brief will refer to the construction work 

performed as Ballenger’s. 
3

224. After becoming aware of the 2010 flood events, TxDOT instructed Ballenger 

to reestablish adequate drainage in the area. CR 223. 

II. Relevant procedural history.

Bhakta filed suit against both TxDOT and Ballenger asserting claims for 

inverse condemnation, nuisance, and negligence. CR 7–11. Bhakta received four 

pleading opportunities, culminating in the filing of his Third Amended Petition on 

October 17, 2013.4 CR 78. 

TxDOT filed its First Amended Plea to the Jurisdiction on September 20, 2013 

(the “Plea”), CR 69, and the trial court granted TxDOT’s Plea on October 21, 2013,

CR 117. After the trial court denied Bhakta’s Motion for Reconsideration and 

Rehearing, Bhakta filed an accelerated interlocutory appeal of the granting of 

TxDOT’s Plea to this Court. However, Bhakta failed to timely file its notice of 

interlocutory appeal and the interlocutory appeal was dismissed. See Bhakta v. Tex. 

Dep’t of Transp., No. 04-14-00063-CV, 2014 WL 1499810 (Tex. App.—San 

Antonio Apr. 16, 2014, no pet.) (mem. op.). The case then proceeded in the trial 

 

4 While the Third-Amended Petition was filed after TxDOT’s Plea, it is the live pleading for the 

purpose of this Court’s review, as it was filed before the trial court’s ruling, and counsel for Bhakta 

specifically referenced that petition during oral argument at the hearing on TxDOT’s Plea. 7 RR 

10-14. See, e.g., Church v. City of Alvin, No. 01-13-00865-CV, 2015 WL 3916708, at *4 (Tex. 

App.—Houston [1st Dist.] June 25, 2015, no. pet. h.) (mem. op.) (discussing whether live pleading 

at time of city’s plea or amended pleading filed four days before the hearing was operative pleading 

for review); City of McKinney v. Hank’s Rest. Group, L.P., 412 S.W.3d 102, 110 (Tex. App.—

Dallas 2013, no pet.) (holding amended petition filed before trial court ruled on plea to the 

jurisdiction was live pleading for purposes of plea). 
4

court against the second defendant, Ballenger, concluding in a settlement between 

Bhakta and Ballenger. 1st Supp CR 6–7. The agreed final judgment, signed on 

March 9, 2015, incorporated the trial court’s dismissal of Bhakta’s claims against 

TxDOT. 1st Supp CR 7. On March 30, 2015, Bhakta filed a notice of appeal of the 

final judgment with respect to TxDOT. CR 362–63.

SUMMARY OF THE ARGUMENT

While all of Bhakta’s asserted causes of action against TxDOT fail to allege 

a valid waiver of sovereign immunity on multiple grounds, one overarching fact is 

fatal to each of them—this case involves nothing more than a contractor’s 

negligence. Bhakta properly pled and pursued a valid negligence claim against 

Ballenger in the trial court. No amount of artful pleading, however, can turn that 

claim into claims for which TxDOT has waived sovereign immunity. 

First, Bhakta cannot allege or establish a valid inverse condemnation claim 

for three distinct reasons: (1) TxDOT did not have the requisite intent to take his 

property; (2) Bhakta cannot meet the “public use” requirement for a takings claim; 

and (3) no intentional act of TxDOT caused Bhakta’s alleged property damage. 

Notably, under the heightened pleading standard set forth in City of Dallas v. 

Jennings, 142 S.W.3d 310 (Tex. 2004), Bhakta must allege that TxDOT knew the 

Project would cause the flooding of his property or knew that such flooding was 

substantially certain to result from the Project. He has not, and cannot, as the 
5

jurisdictional evidence shows TxDOT in fact intended the opposite—that the Project 

have a working and continuous storm-water drainage system along Highway 281. 

Likewise, because Bhakta cannot allege the diversion of water onto his property was 

intentional, he cannot meet the public use requirement, which distinguishes a 

negligence claim from an inverse condemnation claim. Lastly, Bhakta’s inverse 

condemnation claim further fails because Bhakta has not pled, and cannot show, that 

any specific act by TxDOT caused his alleged property damage.

Next, Bhatka asserts a claim for negligence under Section 101.021 of the 

Texas Tort Claims Act (“TTCA”), which provides a limited waiver of sovereign 

immunity when property damage arises “from the operation or use of a motor-driven 

vehicle or motor-driven equipment.” Tex. Civ. Prac. & Rem. Code § 101.021(1)(A). 

While Bhakta speculates his property damage must naturally be the result of the use 

of motor-driven equipment, this claim fails two separate requirements of Section 

101, as (1) no governmental employee was operating the alleged equipment at issue, 

and (2) Bhakta’s allegations fail § 101.021’s causal nexus requirement, since the 

alleged equipment at most furnished the condition that made Bhakta’s injury 

possible. 

Finally, Bhakta’s nuisance claim against TxDOT is dependent on a valid 

waiver of immunity from another source, as nuisance liability of a governmental 

entity arises only when immunity is clearly and unambiguously waived by statute or 
6

when the nuisance rises to the level of a constitutional taking. As Bhakta cannot 

allege a valid takings claim or waiver of immunity under Section 101 of the TTCA, 

TxDOT retains immunity from Bhakta’s nuisance claim. 

ARGUMENT

I. Scope and standard of review.

A. Sovereign immunity.

“State agencies like TxDOT are immune from liability in Texas unless the 

Legislature waives that immunity.” Tex. Dep’t of Transp. v. City of Sunset Valley, 

146 S.W.3d 637, 641 (Tex. 2004). “In a suit against a governmental unit, the 

plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid 

waiver of immunity.” Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 

(Tex. 2003). The burden is on the plaintiff to allege facts affirmatively 

demonstrating the trial court’s subject matter jurisdiction over the case. Tex. Ass’n 

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44, 446 (Tex. 1993). Whether 

a court has subject matter jurisdiction is a question of law that is reviewed de novo. 

Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 

2013); Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex. 2012).

B. TxDOT’s Plea to the Jurisdiction.

“Sovereign immunity deprives a trial court of subject-matter jurisdiction for 

lawsuits in which the governmental entity has been sued unless it consents to suit 

and, thus, sovereign immunity is properly asserted in a plea to the jurisdiction.” City 
7

of San Antonio v. De Miguel, 311 S.W.3d 22, 25 (Tex. App.—San Antonio 2010, no 

pet.) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224–26 

(Tex. 2004)). In a plea to the jurisdiction, a party may challenge the pleadings, the 

existence of jurisdictional facts, or both. Miranda, 133 S.W.3d at 226–27. If a plea 

to the jurisdiction challenges the pleadings, the court must determine whether the 

pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction. Id. 

at 227. “If the pleadings affirmatively negate the existence of jurisdiction, then a 

plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity 

to amend.” Id. 

If a plea to the jurisdiction challenges the existence of jurisdictional facts, the 

court must consider relevant evidence submitted by the parties when necessary to 

resolve the jurisdictional issues. Id. Where the jurisdictional challenge implicates 

the merits of the plaintiff’s cause of action, the court must review the relevant 

evidence to see if a fact issue exists. Id. If the relevant evidence is undisputed or 

fails to raise a fact question on the jurisdictional issue, the court must rule on the 

plea to the jurisdiction as a matter of law. Id. The standard of review in these 

situations “generally mirrors” the summary judgment standard. Id at 228. 

TxDOT’s Plea to the Jurisdiction challenged the sufficiency of Bhakta’s 

pleadings and the trial court reviewed the existence of jurisdictional facts. CR 69–

77; 4 RR 23–5 RR 13; 1st Supp CR 7 (“The Court after considering the motion and 
8

arguments of counsel, and evidence admitted granted TxDOTs [sic] Plea to the 

Jurisdiction and by interlocutory Order dismissed the Plaintiff’s claims against 

TxDOT”) (emphasis added).5 

C. Additional jurisdictional challenges.

Along with those identified in its Plea, TxDOT also raises several additional 

jurisdictional challenges for the first time on appeal. See Appellee’s Br. at Sections

II. D, II. E, III. A. Courts of appeal have been directed to address such additional 

grounds even when raised for the first time in an appeal. See Dall. Cnty. v. Logan,

407 S.W.3d 745, 746 (Tex. 2013); City of Leon Valley v. Wm. Rancher Estates Joint 

Venture, No. 04-14-00542-CV, 2015 WL 2405475, at *2 (Tex. App.—San Antonio 

May 20, 2015, no pet.) (mem. op.). When doing so, the appellate court applies a 

modified standard of review. Rusk State Hosp. v. Black, 392 S.W.3d 88, 96 (Tex.

2012). If the pleadings and record neither demonstrate jurisdiction nor conclusively 

negate it, the governmental entity must show either that “the plaintiff failed to show 

jurisdiction despite having had full and fair opportunity in the trial court to develop 

the record and amend the pleadings or, if such opportunity was not given, that the 

plaintiff would be unable to show the existence of jurisdiction if the cause were 

remanded to the trial court and such opportunity afforded.” Id. “If the governmental 

 

5

See generally Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (A “court deciding 

a plea to the jurisdiction is not required to look solely to the [plaintiff’s] pleadings but may consider 

evidence and must do so when necessary to resolve the jurisdictional issues raised.”).
9

entity meets this burden, then the appellate court should dismiss the plaintiff’s case.” 

Id. Otherwise, the appellate court must remand the case to the trial court for further 

proceedings. Id. 

D. Bhakta’s claims were properly dismissed. 

Despite four separate pleading attempts, including the filing of his Third 

Amended Petition after TxDOT’s First Amended Plea to the Jurisdiction, Bhakta 

failed to allege facts that would support a valid waiver of immunity against TxDOT. 

Bhakta was given a full and fair opportunity to develop the record, and introduced 

jurisdictional evidence that included testimony from both a TxDOT engineer and 

Danny Bhakta,6in addition to other exhibits. CR 93-116, 127-361; 2nd Supp CR 17-

58. Moreover, Bhakta’s pleadings and the evidence submitted affirmatively negate

the existence of jurisdiction, and reveal the jurisdictional defects in Bhakta’s claims 

are incurable through further amendment to his pleadings. 

II. Bhakta’s inverse condemnation claim was properly dismissed.

The Texas Constitution waives sovereign immunity when a landowner’s 

property is “taken, damaged or destroyed for or applied to public use without 

adequate compensation.” Tex. Const. art. I, § 17.7 However, to invoke that waiver, 

 

6 Danny Bhakta appears to be another member of the Appellant’s family involved with the Budget 

Inn. 2nd Supp CR 51.

7 The three distinct claims allowed by this section—taking, damaging, and destruction of property 

—are all commonly referred to as a “taking.” City of Dall. v. Jennings, 142 S.W.3d 310, 313 n. 2 

(Tex. 2004).
10

a plaintiff must plead a valid inverse condemnation claim. See Bell v. City of Dall., 

146 S.W.3d 819, 825 (Tex. App.—Dallas 2004, no pet.) (“When a plaintiff does not 

allege a valid inverse condemnation claim, however, governmental immunity does 

apply and the trial court should grant a plea to the jurisdiction.”). To state a valid 

takings claim, Bhakta must allege that (1) TxDOT intentionally performed certain 

acts, (2) that resulted in a “taking” of its property, (3) for public use. General Servs. 

Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001). 

Moreover, even if a valid inverse condemnation claim is alleged, if there is no 

evidence to support the plaintiff’s allegations or those allegations are negated as a 

matter of law, then the government retains immunity from suit. See City of San 

Antonio v. Pollock, 284 S.W.3d 809, 821 (Tex. 2009) (“Since there was no evidence 

of a compensable taking, the City is immune from the Pollocks’ property damage 

claims.”). Whether particular facts are enough to constitute a taking is a question of 

law. Little-Tex, 39 S.W.3d at 598. Here, Bhakta cannot meet the intent, public use, 

and causation elements of a valid takings claim.

A. TxDOT did not have the requisite intent to support a valid takings 

claim.

“Intent” is an element of an inverse condemnation claim. City of Dall. v. 

Jennings, 142 S.W.3d 310, 314 (Tex. 2004). The Texas Supreme Court in Jennings

 
11

set forth the requisite standard for evaluating a governmental entity’s intent, holding 

a court may find that a governmental entity acted intentionally if the entity: (1) 

knows that a specific act is causing identifiable harm; or (2) knows that the specified 

property damage is substantially certain to result from an authorized government 

action—that is, that the damage is necessarily an incident to, or necessarily a 

consequential result of the government’s action. Jennings, 142 S.W.3d at 314. The 

Jennings standard is a heightened pleading standard of intent, and mere intent to 

operate a public work is insufficient to support an inverse condemnation claim. City 

of Arlington v. State Farm Lloyds, 145 S.W.3d 165, 168 (Tex. 2004) (recognizing 

that the mere intentional operation of a sewer system is insufficient to support 

liability for inverse condemnation claims). 

Further, it is not enough to claim that the government should have known that 

damage was substantially certain—actual knowledge is required. City of Keller v. 

Wilson, 168 S.W.3d 802, 829 (Tex. 2005). Importantly, a government entity’s 

knowledge must be determined as of the time it acted, not with benefit of hindsight. 

Pollock, 284 S.W.2d at 821. Finally, a governmental entity’s awareness of the mere 

possibility of damage is no evidence of intent. Id. at 821.

Therefore, under Jennings, Bhakta must allege that TxDOT knew the Project 

would cause the flooding of his property or knew that such flooding was 

substantially certain to result from the Project. Bhakta, however, has merely alleged 
12

that TxDOT intended to build a road, the building of which damaged his property.

The specific factual allegations in Bhakta’s Third Amended Petition regarding 

TxDOT’s intent are: 

 “TxDOT intentionally performed certain acts in the design of the 

flood control system for the roadway. . .” CR 80.

 “While TxDOT intended for Ballenger to make the alterations 

[to the drainage system] they were done in such a way that the 

system no longer protect Plaintiff’s property. . . ” CR 80. 

 “TxDOT’s intentional plan for the storm and waste water 

control. . .” CR 80. 

These allegations are insufficient to support a valid takings claim, and in fact, 

are analogous to the allegations in a litany of cases where courts have granted or 

affirmed pleas to the jurisdiction. For example, in Jennings, the landowners brought 

a takings claim against the city after the city unclogged a sewer main, which resulted 

in raw sewage flooding their home. 142 S.W.3d at 314. The landowners asserted 

that “because the city intended to unclog a backup, and because this action resulted 

in the sewage flood, the City should be liable for the damage caused by the flood.” 

Id. at 313. The Court disagreed, holding there was no evidence the City knew that 

flooding would occur when it unclogged the sewer line, nor was that evidence that 

the act of unclogging a sewer was substantially certain to lead to flood damage. Id. 

at 315. 
13

This court also addressed intent allegations comparable to Bhakta’s in San 

Antonio Water System v. Overby, 429 S.W.3d 716, 720–21 (Tex. App.—San Antonio 

2014, no pet.). There, the plaintiffs alleged the city knew the manner in which it

maintained and graded a sewer system in a nearby alley had and would cause 

flooding to their property. The court held that evidence of the city’s knowledge the 

alley’s grade could cause water from the alley to flow onto the plaintiffs’ property 

during a heavy rain was not evidence of the city’s intent to damage their property. 

Id at 721. Instead, the court explained that because the rain water migration to the 

plaintiffs’ property was preventable, it was “not necessarily an incident to, or 

necessarily a consequential result” of the city’s maintaining the sewer system, and 

accordingly there was no evidence the City intended to damage the property. Id. 

(citing Pollock, 284 S.W.3d at 821).

Multiple other courts have also dismissed intent allegations similar to 

Bhakta’s. See Evatt v. Tex. Dep’t of Transp., No. 11-05-00031-CV, 2006 WL 

1349352 (Tex. App.—Eastland May 18, 2006, pet. denied) (mem. op.) (landowners’

allegation that TxDOT intentionally placed concrete barriers on top of adjacent 

highway during construction project was insufficient to allege that TxDOT either 

knew or was substantially certain that their homes would flood as a result of the 

construction methods utilized by the TxDOT); State v. Agnew, No. 13-05-00143-

CV, 2006 WL 1644678 (Tex. App.—Corpus Christi June 15, 2006, no pet.) (mem. 
14

op.) (claim for flood damage arising from construction of state highway failed to 

allege TxDOT knew that flooding was substantially certain to occur from 

construction); Church v. City of Alvin, No. 01-13-00865-CV, 2015 WL 3916708

(Tex. App.—Houston [1st Dist.] June 25, 2015, no. pet. h.) (mem. op.) (no evidence 

of intent to support inverse condemnation claims that the City’s replacement of a 

culvert and reconfiguration of the drainage in connection with a bridge project 

caused increased flooding on property); City of Midlothian v. Black, 271 S.W.3d 791 

(Tex. App.—Waco 2008, no pet.) (landowner failed to plead a valid inverse 

condemnation claim when petition merely alleged that city’s acts “in evaluating, 

approving, and inspecting” were intentional, without any allegation that city knew 

that landowner’s damage was necessarily incident to, or necessarily a consequential 

result of, the city’s action.).

8

Here, Bhatka’s takings claim rests on the same faulty premise as that of the 

plaintiffs’ in Jennings and Overby—that TxDOT intended to build a road, the 

building of the road resulted in flooding to his property, and therefore TxDOT should 

be liable for the damage. See, e.g., Appellant’s Br. at 25 (“Appellee has offered 

nothing to contradict Bhakta’s assertions that his motel property was flooded and the 

 

8 Cf. Harris Cnty. Flood Control Dist. v. Kerr, No. 13-0303, 2015 WL 3641517 (Tex. June 12, 

2015, Mot. for reh’g filed.) (concluding that homeowners raised fact issue concerning whether 

government entities knew that their actions caused flooding where some evidence existed that (1) 

entities received engineering advice explaining that additional development would cause 

damaging flooding, and (2) entities knew that development would lead to damaging flooding).
15

flooding caused damage to his motel.”). This assertion is insufficient to support the 

intent element of a valid takings claim. 

Bhakta does not, and cannot, plead any factual allegation supporting that 

TxDOT knew or was substantially certain that any flooding would result from the 

implementation of the Project, or that such flooding would damage Bhatka’s 

property. Flooding is not the necessary consequence of building a highway, and 

Bhakta cannot show that the flooding of his property was necessarily incident to the 

Project. In fact, to do so, Bhakta must claim Ballenger’s negligence was necessarily 

incident to the Project. Negligence is, by definition, entirely preventable, and 

Ballenger’s therefore was not necessarily incident to the Project or a necessary 

consequence of its design and letting. See Overby, 429 S.W.3d at 721. 

B. The jurisdictional evidence does not contain a fact issue regarding 

TxDOT’s intent. 

Morevoer, Bhakta’s argument that the evidence submitted has at least created 

a fact issue necessitating remand is unavailing. Notably, in Ahart v. Texas

Department of Transportation, No. 14-05-00027-CV, 2006 WL 2167223, at *4 

(Tex. App.—Houston [14th Dist.] Aug. 1, 2006, pet. denied) (mem. op.), the court 

addressed jurisdictional evidence similar to that contained in the record in the present 

case. 

There, the landowners asserted a takings claim alleging that a TxDOT 

highway project blocked storm-waters from flowing into a nearby drainage ditch in 
16

the manner they had before the project’s construction, resulting in the flooding of 

their homes. Id. at *1. The landowners further asserted that TxDOT intentionally 

designed and constructed the drainage system for the highway project to handle the 

capacity of a five-year storm event, the necessary consequence of which being that 

storms of a greater degree would inevitably flood their subdivision. Id. at *3.

The landowners presented evidence of TxDOT’s intent based on the 

deposition testimony of TxDOT’s engineer, who stated in relevant part that: (1) prior 

to the construction of the project, TxDOT was aware of the nearby drainage ditch 

that was subsequently blocked; and (2) TxDOT understood that because the storm 

sewers for the project were designed to handle a five-year storm, an overflow 

condition could occur during a storm of greater magnitude. Id. at *4.9 

The court in Ahart held the testimony of the TxDOT engineer and landowner’s 

expert addressed only causation, not intent, and “[s]uch testimony does not raise a 

fact issue with regard to whether TxDOT knew flooding . . . would result or that 

such flooding was substantially certain to result from the design and construction of 

[the highway].”10 Id. In the same manner, the record here contains testimony from 

 

9 The landowners additionally presented the testimony of their expert who testified the TxDOT 

storm sewer caused the flooding of their home. Id.

10 “It is certainly necessary for an owner to establish cause in fact as a prerequisite to a claim for 

inverse condemnation.” Sloan Creek II, L.L.C. v. N. Tex. Tollway Auth., No. 05-14-01456-CV, 

2015 WL 5093318, at *6 (Tex. App.—Dallas Aug. 28, 2015, no. pet. h.) (citing Pollock, 284 

S.W.3d at 821). “But cause in fact without meeting the Jennings standard of knowledge is not 

enough to prove a governmental entity’s intent as demonstrated by each of the supreme court’s 

opinions after Jennings where the standard of culpability of a governmental entity’s article I, 
17

TxDOT’s engineer and Danny Bhakta addressing the cause of Bhakta’s property 

damage (the disconnects in the drainage system), but none supporting that TxDOT 

knew Bhakta’s property would flood or that such flooding was substantially certain 

to result from the design and construction of the Project. 

C. Any alleged recurrence of flooding is not probative of TxDOT’s 

intent. 

Relying on Tarrant Regional Water District v. Gragg, 151 S.W.3d 546 (Tex.

2004) and Kopplow Development, Inc. v. City of San Antonio, 399 S.W.3d 532 (Tex. 

2013), Bhakta’s argument in support of his inverse condemnation claim primarily

asserts that because Bhakta has alleged the recurrence of flooding, he has alleged a 

valid takings claim. Kopplow and Gragg, however, demonstrate that Bhakta’s 

recurrence argument is simply a red herring, and is not probative of the correct 

inquiry in this case—whether TxDOT had the requisite intent at the time it designed 

the Project. 

1. Gragg’s Recurrence Requirement

“A ‘taking’ by flooding is a specific type of ‘taking.’” Howard v. City of 

Kerrville, 75 S.W.3d 112, 117 (Tex. App.—San Antonio 2002, pet. denied). As 

explained in Gragg, establishing a taking by flooding generally requires more than 

a single flood event. 151 S.W.3d at 555 (“While nonrecurrent flooding may cause 

 

section 17, taking or damage involving physical damage to property has been at issue.” Id. (listing 

cases). 
18

damage, a single flood event does not generally rise to the level of a taking.”).11 The 

Gragg court more fully elaborated: 

In the case of flood-water impacts, recurrence is a probative factor in 

determining the extent of the taking and whether it is necessarily 

incident to authorized government activity, and therefore 

substantially certain to occur . . . The recurrence requirement assures 

that the government is not held liable for taking property when a 

project’s adverse impacts, and by implication its benefit to the public, 

are too temporal or speculative to warrant compensation.

Id.; see also Kopplow, 399 S.W.3d at 537 (“The focus of Gragg is that the 

government’s negligent acts that result in an occasional flood do not benefit the 

public and cannot qualify as a taking.”).

2. Kopplow and Gragg are factually distinguishable.

While both Kopplow and Gragg allowed inverse condemnation claims under 

their respective facts, neither case held that the recurrence of flooding by itself 

constitutes evidence of a governmental entity’s intent, and in each case, the Court 

relied on other indicia of intent in reaching its decision. 

In Gragg, the landowner operated a cattle ranch, which was historically 

subject to frequent flooding from a nearby river (the gentle nature of which actually 

contributed to the property’s suitability for cattle-ranching by increasing the land’s 

 

11 See also Evatt, 2006 WL 1349352 at *4 (“The Department contends that the homeowners cannot 

plead a takings claim in good faith . . . [based] on the fact that only a single flooding event occurred. 

We agree.”); Toomey v. Tex. Dep’t of Transp., No. 01-05-00749-CV, 2007 WL 1153035, at *4 

(Tex. App.—Houston [1st Dist.] Apr. 19, 2007, no pet.) (mem. op.) (landowners could not 

demonstrate TxDOT had requisite intent when only one flooding event was alleged). 
19

fertility). Id. at 551. However, after the regional water district constructed a reservoir 

with minimal overflow capacity, the landowner presented evidence that the 

reservoir’s construction changed the nature of the flooding to the land, making it 

more forceful and destructive, damaging the ranch. Id at 555. Therefore, rather than 

basing its decision on merely the recurrent nature of the flooding—which notably 

was present both before and after the reservoir’s construction—the court in Gragg

upheld the trial court’s finding of a taking based on the fact that “the extensive 

damage the Gragg Ranch experienced was the inevitable result of the reservoir’s 

construction and of its operation as intended.” Id. (emphasis added).12 

Kopplow is likewise factually distinguishable and does not support Bhakta’s 

contention that recurrence is a probative factor of TxDOT’s intent in the present 

case, as the issue before the Kopplow court was whether the landowner’s inverse 

condemnation claim was premature because the property had not yet flooded. 399 

S.W.3d at 533. There, the city planned a regional storm water detention facility, and 

knew the project would inundate portions of the landowner’s property, as well as 

one other tract. Id. at 534. The city obtained a drainage easement for the other 

 

12 Further, in considering specific evidence of the government’s intent under the Jennings standard, 

the Gragg court relied on modeling by the government’s engineer during the project’s design that 

predicted flooding, the governmental entity’s own documentation of hundreds of releases of water 

in amounts that exceeded the flood capacity of the river, the recurrent flooding of the ranch 

following the releases of water, and an internal government memorandum stating there was a need 

to release water in different ways to avoid flooding. Sloan Creek II, 2015 WL 5093318 at *6.
20

affected tract, but was refused when it requested one on the property at issue. Id. at 

537–538. 

The effect of the storm water detention facility was to prevent the landowner 

from developing his property as planned unless it was filled to a new flood level, 

and the landowner brought an inverse condemnation claim seeking damages for the 

fill. Id. at 540. The Court held the landowner’s claim was not premature even though 

the property had yet to flood, stating “the claim is based on the thwarting of approved 

development, not flooding.” Id. Accordingly, the Court did not assess recurrence as 

an indicia of intent, stating:

Here, we need not look to evidence of the frequency of flooding to 

deduce the government’s intent: the City knew the project would 

inundate part of Kopplow’s property before it ever began 

construction, prompting the City to seek a drainage easement from 

Kopplow.

Id. at 537. 

3. Bhakta cannot impute intent to TxDOT through recurrence.

Bhatka’s argument in support of his inverse condemnation claim appears to 

rely exclusively on the faulty conclusion that because his property flooded three 

times, there was a taking. This ignores the Jennings intent requirement. As Bhakta 

admits, “TxDOT’s intent must be examined at the time it made its decision to 

construct the U.S. Highway 281 upgrade.” Appellant’s Br. at 23. 
21

The three alleged flooding events all occurred after TxDOT’s design of the 

Project, and were the result of Ballenger’s negligent construction work, as opposed 

to the Project’s design or intended operation. Bhakta therefore cannot show how the 

alleged fact his property flooded three times during Ballenger’s construction work 

has any probative bearing on whether TxDOT had the requisite intent to take his 

property at the time it originally designed the Project. See, e.g., AN Collision Ctr. of 

Addison, Inc. v. Town of Addison, 310 S.W.3d 191, 196 (Tex. App.—Dallas 2010, 

no pet.) (holding no evidence of intentional act by city despite its knowledge that 

“[s]ince at least 1992 . . . [the subject property] flooded every time there is a hard 

rain lasting more than 15 minutes.”).13

D. Bhakta’s allegations against TxDOT additionally fail the public use 

requirement necessary for a valid takings claim.

Because Bhakta cannot allege the diversion of water onto his property by 

TxDOT was intentional, he cannot meet the public use requirement necessary to 

state a valid takings claim. The public-use requirement distinguishes a negligence 

claim from an inverse condemnation claim. See Pollock, 284 S.W.3d at 820–21; 

 

13 See also City of Keller v. Wilson, 168 S.W.3d 802, 830 (Tex. 2005) (“The missing piece in the 

evidence here is proof that the City knew the plans it approved were substantially certain to 

increase flooding on the Wilsons’ properties. While the City certainly knew that fact after the 

flooding started, the Wilsons never pleaded or submitted to the jury any takings theory other than 

the City’s initial approval.”); Sloan Creek II, 2015 WL 5093318 at *6 (denying taking claim 

relating to design and construction of drainage system and rejecting landowners reliance on Gragg

to support assertion that “erosion subsequent to the design and construction of the Tollway 

improvements is probative of NTTA’s and TxDOT’s knowledge at the time of design”).
22

Jennings, 142 S.W.3d at 314. “When damage is merely the accidental result of the 

government’s act, there is no public benefit and the property cannot be said to be 

‘taken or damaged for public use.’” Jennings, 142 S.W.3d at 313 (quoting Tex. 

Highway Dep’t v. Weber, 219 S.W.2d 70, 71 (1949)). The court in City of Borger 

v. Garcia, 290 S.W.3d 325, 331–32 (Tex. App.—Amarillo 2009, pet. denied) 

addressed an analogous situation, stating:

If the City intended to divert surface waters onto appellees’ property 

to protect other homeowners, then appellees have a claim for a 

taking. On the other hand, if surface waters were not intentionally 

diverted to appellees’ property, then it cannot be said that appellees’ 

property was taken for a public use. Stated another way, assuming 

that there was, in fact, a diversion of surface waters onto appellees’ 

property, if such a diversion was not intended by the City, appellees 

would possess a claim for negligence, but would not be able to 

establish that the unintended diversion of surface waters onto their 

property was for a public use.

(internal citations omitted). Because Bhakta at best has a negligence claim for the 

unintended diversion of water to his property, he cannot show his property was taken 

for a public use. 

E. TxDOT’s alleged actions did not cause Bhakta’s property damage. 

Bhakta has not alleged any specific act taken by TxDOT other than its design 

of the Project. CR 80–83. Bhakta’s property damage, however, was not caused by 

the Project’s design or intended operation, but by Ballenger’s negligent construction.

Jennings contemplates “a specific act . . . causing identifiable harm” as the 

necessary intentional act to form the basis of a valid inverse condemnation claim.
23

142 S.W. 3d at 314; see also Cenizo Corp. v. City of Donna, No. 13-12-00308-CV,

2013 WL 1800270, at *3 (Tex. App.—Corpus Christi Apr. 25, 2013, no pet.) (mem. 

op.) (discussing application of Jennings standard to an identifiable specific act). 

Bhakta seeks to gloss over the lack of any specific act by TxDOT that caused his 

property damage by simply lumping TxDOT and Ballenger together. See, e.g., CR 

82 (“Defendant TxDOT and Ballenger Construction’s interference with the flow of 

surface waters . . .”); CR 83 (“The Defendants have acted intentionally and/or 

unreasonably . . .”). However, it is insufficient to allege that both TxDOT and 

Ballenger were involved with the Project without identifying a specific intentional 

act by TxDOT causing the property damage at issue.

14

Accordingly, as TxDOT’s alleged (and only) act of designing the Project did 

not cause Bhakta’s property damage, it cannot form the basis of a valid inverse 

condemnation claim capable of waiving its immunity.

F. The jurisdictional defects in Bhakta’s claims are incurable by 

further amendment. 

The jurisdictional evidence further shows that Bhakta cannot subsequently 

amend his pleadings to state a valid takings claim against TxDOT. For example, 

 

14 “Merely designing the pleadings to track language in Jennings does not satisfy the standards 

established by Miranda because we review the pleadings as well as the evidence submitted below 

on the plea to the jurisdiction.” City of Dall. v. Blanton, 200 S.W.3d 266, 273 (Tex. App.—Dallas 

2006, no pet.)
24

even though Ballenger was an independent contractor, Bhakta’s Third Amended 

Petition seems to imply an allegation that TxDOT should be liable for Ballenger’s 

negligent construction work under some type of agency theory. See, e.g., CR 80 

(“Ballenger Construction Company, the agent or the employee or contractor of the 

Texas Department of Transportation . . .”). Whether characterized as a cause of 

action against TxDOT for the construction work itself, or an alleged failure to 

supervise Ballenger, further development of this allegation can only result in a 

negligence claim against TxDOT—a claim for which Bhakta cannot show sovereign 

immunity has been waived. See City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 

1997) (stating that mere negligence that contributes to property damage does not 

constitute a taking).15

Nor can Bhakta prevail on allegations that TxDOT failed to correct the 

Project’s drainage system between the first flood in May of 2010 and the alleged 

third flood in 2012. “A governmental entity’s failure to act, even in the face of 

evidence that curative measures are necessary to prevent future damage, rise only to 

the level of a negligence claim, and acts of mere negligence will not support a taking 

claim.” City of El Paso v. Ramirez, 349 S.W.3d 181, 187 (Tex. App.—El Paso 2011, 

 

15 See also AN Collision, 310 S.W.3d at 196 (“The Texas Supreme Court has repeatedly held that 

acts of mere negligence will not support a taking claim.”); Karnes City v. Kendall, 172 S.W.3d 

624, 629 (Tex. App.—San Antonio 2005, pet. denied) (holding that even “gross negligence does 

not supply the requisite intent to sustain liability of a governmental entity for a constitutional 

takings claim”).
25

no pet.) (holding allegations city was aware of potential for overflow and 

subsequently failed to take measures to prevent the overflow did not to rise to the 

level of a claim for inverse condemnation.)

16

Finally, any allegation by Bhakta that TxDOT did not properly plan the 

Project similarly fails as a matter of law. See Garcia, 290 S.W.3d at 331 (“evidence 

that raises a fact issue in regard to the adequacy of the planning of the drainage 

system, at best, raises a fact issue as to whether the City was negligent in its design 

of the drainage system”). Accordingly, the trial court properly dismissed all of 

Bhakta’s claims against TxDOT.

III. Bhakta cannot establish a valid waiver of immunity under the Texas Tort 

Claims Act.

Bhakta next asserts a cause of action for negligence relating to the “operation 

of motorized driven equipment.” CR 81–82. He contends the Texas Tort Claims Act 

(“TTCA”), Section 101.021(1), waives sovereign immunity for this claim. See, e.g.,

 

16 See also City of Keller v. Hall, 433 S.W.3d 708, 727 (Tex. App.—Fort Worth 2014, pet. denied)

(city’s failure to comply with its master drainage plan in approving a developer’s drainage plans 

did not show intent to cause flooding damage); AN Collision, 310 S.W.3d at 196 (“The evidence 

of Addison’s failure to implement a flood control plan shows, at best, a failure to correct a problem 

that Addison knew existed. The alleged failure to act cannot be construed to be an intentional act 

or acts resulting in damage to or taking of Collision Center’s property.”); City of Van Alstyne v. 

Young, 146 S.W.3d 846, 850 (Tex. App.—Dallas 2004, no pet.) (holding that the City’s 

knowledge of alleged problems with sewer pumps which had a history of failure and resulting 

back-ups was not the same as knowledge that the City’s decision not to replace the pumps would 

result in a flood of the plaintiff's home); Bell v. City of Dall., 146 S.W.3d 819, 825 (Tex. App.—

Dallas 2004, no pet.) (pleadings containing only allegations that damage was caused by negligent 

omissions and no allegations that city intentionally performed acts affirmatively negated takings 

claim).
26

Tex. Parks & Wildlife Dep’t v. E.E. Lowrey Realty, Ltd., 235 S.W.3d 692, 694 (Tex. 

2007) (“The Texas Tort Claims Act provides a limited waiver of sovereign immunity 

when property damage arose from the operation or use of a motor-driven vehicle or 

motor-driven equipment.”) (internal quotations omitted). Specifically, Texas Civil 

Practices and Remedies Code § 101.021 states:

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately 

caused by the wrongful act or omission or the negligence of an 

employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from 

the operation or use of a motor-driven vehicle or motor-driven 

equipment; and

(B) the employee would be personally liable to the claimant 

according to Texas law; 

The vehicle-use requirement of this section is strictly construed. Ryder Integrated 

Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015).

Here, Bhakta fails to establish a valid waiver of immunity under Section 

101.021(1) for two separate reasons; as (1) TxDOT did not operate the alleged 

motor-driven equipment, and (2) even if it had, an insufficient causal nexus exists 

between the operation of the alleged motor-driven equipment and Bhakta’s property 

damage. 
27

A. TxDOT did not operate the alleged motorized equipment. 

First, Bhakta must show that a government employee actually operated the 

motor-driven equipment that caused his injury. LeLeaux v. Hamshire–Fannett 

Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992). The TTCA defines an “employee” 

as:

a person, including an officer or agent, who is in the paid service of a 

governmental unit by competent authority, but does not include an 

independent contractor, an agent or employee of an independent 

contractor, or a person who performs tasks the details of which the 

governmental unit does not have the legal right to control.

Tex. Civ. Prac. & Rem. Code § 101.001(2) (emphasis added). This statutory 

definition “requires both control and paid employment to invoke the TTCA waiver 

of immunity.” City of Hous. v. Ranjel, 407 S.W.3d 880, 890 (Tex. App.—Houston 

[14th Dist.] 2013, no pet.). “The type of control necessary to establish employee 

status for waiver-of-immunity purposes is control over the details of the operation 

or use of the motor-driven equipment or tangible personal property.” Id. (emphasis 

added).

In the present case, the record does not establish who exactly operated the 

equipment at issue. 17 What it does establish—and what Bhakta admits—is that no 

TxDOT (i.e. government) employee ever operated the alleged motor-driven 

 

17 As previously noted, it is unclear from the record whether the motor-driven equipment was 

operated by Ballenger or its subcontractor Leal. CR 36, 41–47, 172, 178–79, 213.
28

equipment that performed work on the drainage system. CR 81 (“The Plaintiff’s 

injury arose from the operation or use of a motor-driven vehicle or motor-driven 

equipment by Ballenger used to disconnect the . . .”) (emphasis added). 

Bhakta attempts to circumvent the fact that TxDOT did not perform the 

construction work in question by simply lumping TxDOT and Ballenger together, 

implying that Ballenger was the agent of TxDOT or performed the construction work 

on the drainage system at the direction of TxDOT. Bhakta’s unfounded allegations, 

however, cannot transform Ballenger or Leal’s construction workers into 

government employees under Texas law. 18 

Here, the jurisdictional evidence shows that TxDOT at most merely retained 

control over the end results of the Project, and not the daily operation of the motordriven equipment. This is insufficient to support a waiver of immunity. See EPGT 

Tex. Pipeline, L.P. v. Harris Cnty. Flood Control Dist., 176 S.W.3d 330, 337 (Tex. 

App.—Houston [1st Dist.] 2004, pet. dism’d) (“These contract provisions . . . 

indicate control over the general requirements of the projects, and its proper 

completion, but do not show control over the details of Ramex’s work with regard 

to Ramex employees use of motor-driven vehicles—the standard for determining 

whether a party is an employee or independent contractor within the scope of section 

 

18 “When the material underlying facts are not in dispute and can give rise to only one reasonable 

conclusion, the question whether a worker is an employee or an independent contractor is a 

question of law.” Ranjel, 407 S.W.3d at 890.
29

101.021.”); Ranjel, 407 S.W.3d at 891–92 (trial court erred in denying plea when 

jurisdictional evidence established City of Houston contracted with company to 

operate and maintain airport train system that city owned, and city merely controlled 

end result of system’s operation and maintenance). 

Additionally, the fact that TxDOT designed the overall Project is insufficient 

to convert the workers of a construction contractor into its governmental employees. 

See EPGT Tex. Pipeline, L.P., 176 S.W.3d at 337 (“evidence that HCFCD 

participated in the construction plans and specifications, and made inspections as to 

the completion of the work according to the plans . . . does not create a fact issue 

that HCFCD had a right to control, or did control, the details of Ramex’s work with 

respect to the operation of a motor-driven vehicle, the only type of activity for which 

HCFCD waives its immunity in tort.”). 

Accordingly, Bhakta has not alleged, and the evidence does not show, facts 

establishing Section 101.021’s requirement that a government employee operate the 

motor-driven equipment in question. See City of Alvin, 2015 WL 3916708, at *8 

(“Because the summary-judgment record contains no evidence that a City employee 

operated motor-driven equipment in connection with the bridge project, we hold that 

the trial court properly granted the City’s jurisdictional plea on Church’s claim under 

the Texas Tort Claims Act.”).
30

B. Bhakta cannot satisfy Secton 101.021’s causal nexus requirement, 

as the alleged motorized equipment at most furnished a condition 

that made Bhakta’s injury possible.

Even assuming arguendo that a TxDOT employee had operated the alleged

motor-driven equipment, Bhakta still would not be able to establish a valid waiver 

of immunity under the TTCA. To demonstrate a waiver under Section 101.021(1), 

a plaintiff must show a nexus between the employee’s use of the vehicle and the 

injuries sustained. Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542–43 

(Tex. 2003). 

A causal nexus means that “the [vehicle]’s use must have actually caused the 

injury.” Id. at 543 (quoting Tex. Natural Res. Conservation Comm’n v. White, 46 

S.W.3d 864, 869 (Tex. 2001)). The operation or use of a motor vehicle “does not 

cause injury if it does no more than furnish the condition that makes the injury 

possible.” Whitley, 104 S.W.3d at 543 (citing Dall. Cnty. Mental Health & Mental 

Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998)); see also Teague v. City 

of Dall., 344 S.W.3d 434, 439 (Tex. App.—Dallas 2011, pet. denied) (“Thus, the 

causal nexus requires more than mere involvement of the property; the vehicle’s use 

must have actually caused the injury.”). Additionally when “an alleged cause is 

geographically, temporally, or causally attenuated from the alleged effect, that 

attenuation will tend to show that the alleged cause did no more than furnish the 
31

condition that made the effect possible.” City of Dall. v. Hillis, 308 S.W.3d 526, 532 

(Tex. App.—Dallas 2010, pet. denied) (citing Bossley, 968 S.W.2d at 343). 

Claims such as Bhakta’s involving negligent construction work that later 

causes flood damage do not fall within Section 101.021(1)’s waiver of immunity. 

For example, in San Antonio Water Sys. v. Overby, 429 S.W.3d 716, 722 (Tex. 

App.—San Antonio 2014, no pet.), the landowners introduced evidence showing 

that the governmental entity used motor-driven equipment to maintain an alley that 

sometimes flooded their yard with rainwater and sewage. This court held: 

The evidence conclusively proves that it was not SAWS’s use of 

motor-driven equipment to excavate, repair, and refill the alley that 

damaged the Overbys’ property. Rather, it was the condition of the 

alley that led to their damage, and a use of motor-driven equipment 

that results in a condition that causes an injury is not a sufficient 

nexus. 

Id. 

Similarly, in Ector County v. Breedlove, the plaintiffs sued Ector County after 

their home was damaged by flooding following heavy rains, alleging that the 

“[county] employees’ negligent operation and use of motor-driven vehicles or 

motor-driven equipment proximately caused” the flood damage because the 

county’s nearby “road and ditch work” and culvert installations were negligent. 168 

S.W.3d 864, 865–66 (Tex. App.—Eastland 2004, no pet.). The court held that the 

use of the motor-driven equipment did not cause the plaintiff’s injury within the 

meaning of the waiver language in Section 101.021(1)(A), stating “although the 
32

[plaintiffs] attempted to bring their claim within the waiver of Section 101.021(1)(A) 

by phrasing their claim in terms of [the county’s] ‘use’ of motor-driven equipment, 

[the county’s] use of motor-driven equipment only furnished the condition—the 

increased grade and misplacement of culverts—that caused the flooding of their 

home.” Id. at 867. See also Galveston Racquet Club, Inc. v. City of Galveston, 178 

S.W.3d 167, 171 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding immunity 

was not waived because City’s use of water pump created condition that made injury 

possible, but did not directly cause water leak).

Here, Bhakta argues that motor-driven equipment by Ballenger was used to 

improperly disconnect the existing storm water control system, which led to the 

flooding of his property after heavy rains. Appellant’s Br. at 25. As in Ector County

and Overby, the drainage system at issue here only furnished the condition that 

caused the flooding of Bhakta’s property after heavy storms. Bhakta does not allege 

that his property was damaged by contact with any motor-driven equipment or that 

the water was deposited onto his property by motor-driven equipment. Nor can 

Bhakta attribute his property damage to any particular piece of motor-driven 

equipment or a specific time this equipment caused his damages. 

As Bhakta cannot allege facts that show the required causal nexus between 

the use of any motor-driven equipment and his property damage, TxDOT’s 
33

governmental immunity has not been waived, and the trial court correctly granted 

the plea to the jurisdiction on Bhakta’s negligence claim.

IV. Bhakta cannot assert his nuisance claim in the absence of a valid waiver 

of immunity.

Bhakta also alleges a nuisance claim arising from the flooding of his property. 

CR 82–83. This cause of action, however, is dependent on his inverse condemnation 

claim, as Bhakta does not plead a separate waiver of sovereign immunity for his 

nuisance claim, and therefore can only sue for a nuisance that rises to the level of a 

constitutional taking. 

Nuisance liability of a governmental entity arises only when immunity is 

clearly and unambiguously waived by statute, or when the nuisance rises to the level 

of a constitutional taking. Jennings, 142 S.W.3d at 316; Tex. Dep’t of Transp. v. City 

of Sunset Valley, 146 S.W.3d 637, 644 (Tex. 2004) (holding TxDOT cannot be liable 

for damage resulting from its expansion of highway without a clear waiver of 

immunity and retained immunity from a nuisance claim when only basis that could 

potentially be asserted was for unconstitutional taking).

Bhakta does not allege any waiver of immunity other than the takings clause.

CR at 82–83, Appellant’s Br. at 22–25, 24 (“Plaintiff would show that he has 

properly pleaded a takings claim as part of his allegations that the Defendant’s
34

created nuisance which damaged his property”).19 For the reasons discussed above, 

Bhakta has not pled and cannot establish a valid takings claim. Consequently, 

TxDOT retains immunity from Bhakta’s nuisance cause of action, and the trial court

properly granted the plea to the jurisdiction as to this claim.

PRAYER

For all the reasons stated herein, the Texas Department of Transportation asks 

this Court to affirm the trial court’s granting of its First Amended Plea to the 

Jurisdiction. The Texas Department of Transportation also requests this Court 

dismiss Bhakta’s claims with prejudice, as well as any such further relief, general or 

special, to which it may be justly entitled. 

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil 

Litigation

 

19 Bhakta does not appear to plead or argue that the alleged waiver of immunity for his nuisance 

claim against TxDOT is alternatively premised on his TTCA § 101.021 cause of action entitled 

“negligence in the operation of a motor driven equipment.” CR at 81–83, Appellant’s Br. at 22–

25. However, as the pleadings are unclear, to the extent Bhakta may have also invoked a waiver 

under Section 101.021 with regard to his nuisance claim, the TTCA similarly fails to provide a 

valid waiver for reasons discussed in the preceding section of this brief. Therefore, Bhakta’s 

nuisance claim fails regardless of whether Bhakta asserted a waiver under § 101.021 or the takings 

clause. See, e.g., Overby, 429 S.W.3d at 721.
35

RANDALL K. HILL

Assistant Attorney General

Chief, Transportation Division

/S/ John Seth Johnson

JOHN SETH JOHNSON

State Bar No. 24083259

john.johnson@texasattorneygeneral.gov

Assistant Attorney General

P. O. Box 12548 

Austin, Texas 78711-2548

512/ 463-2004; FAX 512/ 472-3855

ATTORNEYS FOR APPELLEE, 

THE TEXAS DEPARTMENT OF 

TRANSPORTATION

CERTIFICATE OF COMPLIANCE

The undersigned certifies that the above computer-generated document 

contains a total of 8,783 words, not counting the caption, identity of parties and 

counsel, table of contents, index of authorities, statement of the case, statement of 

issue presented, signature, certificate of compliance, certificate of service, and 

appendix, as counted by the program creating said document.

/S/ John Seth Johnson

JOHN SETH JOHNSON

Assistant Attorney General
36

CERTIFICATE OF SERVICE

This is to certify that on this day, September 23, 2015, a true and correct copy 

of the foregoing Brief of Appellee The Texas Department of Transportation has 

been sent to the Court via electronic mail and has been sent as follows:

Via E-Service and E-mail

Aloysius Peter Thaddeus, Jr.

The Law Offices of 

V. Gonzalez & Associates, PC.

121 N. 10th Street

McAllen, Texas 78501

Attorney for Appellant Hetul Bhakta d/b/a Budget Inn

/S/ John Seth Johnson

JOHN SETH JOHNSON 

Assistant Attorney General