IN THE

TENTH COURT OF APPEALS

No. 10-21-00075-CV

CITY OF ROBINSON, TEXAS,

Appellant

v.

GABRIEL RODRIGUEZ AND 

IRENE RODRIGUEZ,

Appellees

From the 170th District Court

McLennan County, Texas

Trial Court No. 2021-117-4

DISSENTING OPINION

The residents of Robinson benefit from a municipal sewage system. Gabriel and Irene 

Rodriguez contend that they are being forced to endure periodic inundation of their home by that 

system which has not only directly caused them damage by back-flowing raw sewage into their 

home, but has also occurred so often that it has permanently damaged the value thereof; and as 

a result, their property has been taken/damaged by the City of Robinson for the benefit of its 

residents. The question is whether the City of Robinson is going to be required to pay for the 

damages the City’s sewer system has caused Gabriel and Irene. The Texas Constitution says that 

the City is not immune from a suit for causing damage to Gabriel and Irene for a government 
City of Robinson v. Rodriguez Page 2

service that benefits the City’s residents. The Court’s holding takes that right away. I disagree. 

Accordingly I would affirm the trial court’s denial of the City’s plea to the jurisdiction.

As indicated, this proceeding is not yet about the merits of the claims. It is about whether 

Gabriel and Irene are even going to have an opportunity to prove their claim in a Texas 

courtroom. The trial court determined they were entitled to pursue that claim. Established 

precedent from this Court also holds that Gabriel and Irene should have their day in court and 

not be dismissed based on governmental immunity. In 1993 this Court stated:

Because fact questions exist about what caused the backup, whether the City 

intentionally or negligently failed to correct the cause of the backup, whether the 

condition rose to the level of a nuisance, whether the City intended to take acts

which resulted in the taking, damaging, or destruction of any interest in the 

property, the City has failed to meet its summary-judgment burden and was not 

entitled to summary judgment on this cause of action.

Bible Baptist Church v. Cleburne, 848 S.W.2d 826, 830 (Tex. App.—Waco 1993, writ denied).

So well-established has this line of authority been that in 2004, this Court applied it to 

another proceeding, with remarkably similar facts, in a memorandum opinion in which it was 

summarily stated:

INVERSE CONDEMNATION AND NUISANCE CLAIMS

What actually caused the backup in the sewage line, whether the City knew of the 

problems, whether it intentionally or negligently failed to correct the cause of the 

backup, and whether the condition rose to the level of a nuisance or an 

unconstitutional taking are not known. Based on the current state of the law in this 

district, we hold that the trial court erred in granting the City's plea to the 

jurisdiction regarding the inverse condemnation and nuisance claims. See Cozby v. 

City of Waco, 110 S.W.3d 32 (Tex. App.—Waco 2002, no pet.); Bible Baptist Church v. 

City of Cleburne, 848 S.W.2d 826 (Tex. App.—Waco 1993, writ denied). We recognize 

that an inverse condemnation case on these issues, which could modify our 

analysis, is currently pending review by the Texas Supreme Court, 92 S.W.3d 640 

(Tex. App.—Beaumont 2002, pet. granted). But on the precedent currently binding 

on this court, Padgett and Dunn's first issue is sustained, in part.
City of Robinson v. Rodriguez Page 3

Padgett v. City of Madisonville, 2004 Tex. App. LEXIS 1442, *2-3 (Tex. App.—Waco Feb. 11, 2004, no 

pet.).

Bible Baptist has been cited at least 31 times with no adverse history.

No appellate court has cited Padgett, which is as it should be with a true memorandum 

opinion. The petition for review in the Sabine River Authority of Texas v. Hughes opinion cited in 

Padgett was ultimately denied. Moreover, the Texas Supreme Court cases of Abilene v. Downs1

1 The Court’s opinion is particularly instructive on claims related to a nuisance created by the operation of a sewage 

plant, including noxious odors. There, the Court stated:

The resolution of the foregoing rests in the fact that the invading agents resulting from the operations 

of the sewage disposal plant do not affect the physical condition or cause damage to the land itself -

as was the case of flowing water in Fromme - but are the cause of, and result in, personal discomfort 

and annoyance to those who reside on the land. The damages consequent therefrom are recoverable 

as a taking or damaging of private property for a public use under Article I. Section 17, of the 

Constitution only if, and after, the operations of the sewer farm constitute a nuisance.

The basic rule was early stated by this Court in Baugh v. Texas & N.O.R. Co., 80 Tex. 56, 15 S.W. 587:

"When a nuisance is created by the construction of works in their nature permanent, 

and which, as sometimes occurs in case of works for a public use, are not subject to 

be abated, the rule is that all damages resulting therefrom to property may be 

recovered in one action, and the proper measure of damages is the depreciation in 

the value of the property. Resenthal v. Railway Co., (Tex.) ante, 268 (decided at the 

present term;) Railway Co. v. Hall, 78 Tex. 169, 14 S.W. Rep. 259."

It was further held by this Court in Sherman Gas & Electric Co. v. Belden, 103 Tex. 59, 123 S.W. 119:

"To justify a recovery of damages for personal inconvenience or reduction in the 

value of their property, the plaintiffs must prove such annoyance, discomfort, or 

other interruption of the use of their home as would constitute a nuisance. The 

standard by which the issue of nuisance must be determined by the jury is that the 

conditions caused by the operation of the plant were such as would disturb and 

annoy persons of ordinary sensibilities, and of ordinary tastes and habits. In other 

words, the acts complained of must constitute a nuisance. W.P.O. Co. v. Cook, 6 Tex. 

Civ. App. 573, 26 S.W. 96; League v. Journeay, 25 Tex. 172, Dittman v. Repp. 50 Md. 

516, 33 Am. Rep. 325; 21 Am. & Eng. Ency. 687.

"If there be no nuisance, there can be no recovery of damages for such annoyance as 

may exist, nor for diminution in the value of the property."

City of Abilene v. Downs, 367 S.W.2d 153, 158 (Tex. 1963).
City of Robinson v. Rodriguez Page 4

and Dallas v. Jennings,

2 when compared to the procedural posture, facts, and holding of the trial 

court, support what the trial court did here, which was to allow the suit to proceed to a 

determination of the merits of whether the City has taken or damaged private property for the

public’s benefit within the meaning of Article I, Section 17 of the Texas Constitution.

At the very least, it is clear that Gabriel and Irene could easily amend their petition to bring 

themselves within the jurisdiction of the trial court as was held in the precedential cases in this 

district. I have not found anything that is inconsistent with the continued vitality of these cases 

as binding precedent upon this Court.

If Gabriel and Irene are able to establish the back-flowing raw sewage caused by the 

intentional operation3 of the sewage treatment system is a nuisance that has damaged the use and 

enjoyment of their home, they have been deprived of their property within the meaning of Art 1 

Section 17 of the Texas Constitution. Because the Court holds that they will be permanently 

deprived of their property without even the opportunity to establish their unconstitutional 

takings claim, I respectfully, but vigorously, dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed October 6, 2021

Publish

2 City of Dallas v. Jennings, 142 S.W.3d 310, 314-15 (Tex. 2004).

3 This is not like the situation in Schneider v. Cuero, 749 S.W.2d 614 (Tex. App.—Corpus Christi 1988, writ denied), 

wherein the City was negligent in its operation of the landfill. Here, the City is intentionally operating the sewage 

treatment system for the continued use/benefit of its citizens.