IN THE SUPREME COURT OF TEXAS

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NO. 13-0303

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HARRIS COUNTY FLOOD CONTROL DISTRICT AND

HARRIS COUNTY, TEXAS, PETITIONERS,

v.

EDWARD A. AND NORMA KERR, ET AL., RESPONDENTS

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS

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JUSTICE WILLETT, joined by JUSTICE JOHNSON, JUSTICE LEHRMANN, and JUSTICE BROWN,

dissenting.

Harris County spent tens of millions of dollars on flood control measures. The only

affirmative County conduct about which the Plaintiff-homeowners complain was the approval of

subdivision plats for private development, a routine activityperformed in everycounty.ByPlaintiffs’

own reckoning the flooding of their homes resulted from multiple causes. There is no evidence that

the County was substantially certain its conduct would result in the flooding of Plaintiffs’ particular

homes, or that the County ever intended to use those properties in any capacity for flood control

measures. I would hold that a cognizable takings claim is not presented. Today’s decision will

encourage governments to do nothing to prevent flooding, rather than studying and addressing the

problem.
I. Background

Plaintiffs consist of about 400 homeowners whose homes were located in the upper White

Oak Bayou watershed of Harris County. The homes suffered flood damage one or more times during

Tropical Storm Francis in 1998, Hurricane Allison in 2001, and another unnamed storm in 2002.

Plaintiffs sued Harris County and the Harris County Flood Control District (collectively the

County), asserting a takings cause of action. The homeowners sued other defendants as well, 1

including the Texas Department of Transportation, municipal utilitydistricts, engineering firms, and

private developers; those claims were settled or dismissed and are not presented for review.

Most of Plaintiffs’ homes were built in the 1970s and early 1980s. Prior to the three flood

events in issue, Plaintiffs’ homes had suffered little or no flood damage, although the area has a long

history of flooding. In 1976 the U.S. ArmyCorps of Engineers prepared an “Interim Report on Upper

White Oak Bayou.” The report was coordinated with numerous federal and state entities including

the District, the Cities of Houston and Jersey Village, and the Harris County Commissioners Court.

The report noted recurring flooding in the upper White Oak Bayou watershed, an area of 61 square

miles. It described damaging flooding “occurring almost annuallyfor the past several years.” It stated

that the flooding was “caused primarily by inadequate channel capacities of the streams,” and that

the problem was “compounded by continuing urbanization” of the fast-growing area. It predicted:

“Additional residential development is expected to occur with or without an adequate plan for

The Defendants contend their conduct with respect to flood control was coextensive, and Plaintiffs do not

1

argue otherwise. Defendants present identical argument to us in combined briefing. Their briefing states that “[t]he

District was the arm of the County that dealt with flood control,” and at oral argument, counsel for Defendants stated

that “the District really can’t act without the County’s approval. The County only acts in flood control through the

District. . . . There may be different duties but in terms of their acts in this case they’re absolutely coextensive.”

2
controlling the floods. Although current local regulations require that new structures be built above

the level of the 100-year flood, damages will increase substantially in the future with increased

rainfall runoff rates.” It proposed “enlargement, rectification, and partial paving” of the bayou and

tributaries, together with other flood control measures. The plan was to be funded primarily by the

federal government.

The County concurred with Corps’ findings and agreed to act as a sponsor for the project,

but federal funding was slow to materialize. The County approved new residential developments in

the 1976–1984 period. The District began requiring new developments in the upper bayou watershed

to provide on-site detention ponds. The parties disagree on the extent to which the District deviated

from this policy. The District eventually hired Pate Engineers to develop a flood control plan, which

was presented in a written report (the Pate Plan) in 1984. The Plan noted a “current policy requiring

on-site stormwater detention on all new development projects in the Upper White Oak Bayou

watershed,” and proposed channel improvements combined with detention basins, with the goal of

eliminating “the [100-year] flood plain in the upper portion of the watershed.” The Plan stated that

its implementation “should eliminate the existing flood plainsthrough the existing developed portion

of upper White Oak Bayou and provide for phased implementation of the ultimate plan to maintain

100-year flood protection on White Oak Bayou as future development occurs.” In 1984, the County

approved the Pate Plan and authorized the District to implement it. The Plan was to be funded

through local taxes and impact fees, because federal funding was no longer available, and was to be

implemented in phases. Developers who did not construct on-site detention facilities could pay an

impact fee that would fund the construction of regional detention facilities.

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The Pate Plan was never fully implemented, and flooding continued. In 1990 the District

commissioned a new study by Klotz Associates to address flood concerns. The Klotz Plan called for

measures that were different from the Pate Plan measures. The parties offer different

characterizations of the shift from the Pate Plan to the Klotz Plan. The County contends the Klotz

Plan was necessary because assumptions in the Pate Plan proved wrong, and that the Klotz Plan was

more ambitious than the Pate Plan. Plaintiffs contend the Klotz Plan was less extensive than the Pate

Plan for various reasons.

Plaintiffs claim the flooding of their homes was caused by the County’s approval of

“unmitigated” upstream development, combined with a failure to fully implement the Pate Plan.

Their expert, Larry Mays, relied on alleged unmitigated development occurring in the 1976–1990

time frame.

2

The County filed a combined plea to the jurisdiction and motion for summary judgment. The

trial court grudgingly denied the motion, and the court of appeals affirmed. 3 4

The beginning of the alleged unmitigated development is disputed. But the record is clear that the date the

2

alleged unmitigated development ended was no later than 1990. Mays’ first expert report on the 1998 Tropical Storm

Francis flooding relied on a model of rainfall and runoff based on 1990 land use conditions, and asserted that “differences

in flows that would result by updating to 1998 conditions are minimal.” His second report, discussing the two later

storms, asserted that “[t]he causations of flooding” of the two later storms “are the same as pointed out in my 2001 report

for the Tropical Storm Francis.” Mays also at least twice confirmed in his deposition that development after 1990 did

not cause additional flooding, agreeing that “for those subdivisions that were developed between 1990 and 1998, you

assumed that they did not contribute any additional flows into White Oak Bayou,” and “it is fair to say that you have no

evidence that development between 1990 and 1998 had any effect, any impact on the Plaintiffs’ flooding in this case.”

 The trial court felt obliged under the law of the case doctrine to deny the motion based on an earlier court of

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appeals decision, but stated that it found the appellate decision “contradictory to Aristotle’s Posterior Analytics in as

much as the opinion fiats the presupposition that foreknowledge of possible future flooding is evidence of a forewill to

take when a Governmental entity elects to expend its financial resources on other venues rather than proscriptively

expending funds on the project at hand (a traditionally exempt exercise of legislative discretion—arguably thus the

robbery victim may sue for funds spent upon fire prevention and home fire victim for funds spent upon police

protection).”

445 S.W.3d 242.

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II. Analysis

A. General Principles of Takings Law and the Intent Element

Generally, plaintiffs seeking recovery for a taking must prove the government “intentionally

took or damaged their property for public use, or was substantially certain that would be the result.”5

Sovereign immunity does not shield the government from liability for compensation under the

takings clause.6

Much of our takings jurisprudence focuses on the required mens rea. We have made clear

that a taking cannot be established by proof of mere negligent conduct by the government.7

B. Other Elements of Takings Jurisprudence: Affirmative 

Conduct, Specificity, and Public Use

Much of the briefing focuses on the element of intent, but there are other elements of a taking

that render Plaintiffs’ claim problematic.

1. Affirmative Conduct

Our jurisprudence provides that only affirmative conduct by the government will support a

takings claim. We have always characterized a takings claim as based on some affirmative “act” or

“action” of the government. For example, in Tarrant Regional Water District v. Gragg, we held “that

the requisite intent is present when a governmental entity knows that a specific act is causing

City of Keller v. Wilson, 168 S.W.3d 802, 808 (Tex. 2005).

5

Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). Like the Court’s opinion,

6

for convenience my references herein to “sovereign immunity” are to the related doctrines of sovereign immunity and

governmental immunity.

City of Tyler v. Likes, 962 S.W.2d 489, 505 (Tex. 1997).

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identifiable harm . . . .” In Gragg the damage to the plaintiffs’ ranch was caused by the water 8

district’s affirmative acts of constructing a reservoir and releasing water from the reservoir’s

floodgates. Or in City of Dallas v. Jennings, “the parties agree that only an intentional act can give 9

rise to such a taking . . . There may well be times when a governmental entity is aware that its action

will necessarilycause physical damage to certain private property, and yet determines that the benefit

to the public outweighs the harm caused to that property.” A government cannot be liable for a

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taking if “it committed no intentional acts.” We have not recognized a takings claim based on 11

nonfeasance. Plaintiffs conceded this point in their briefing to the trial court, stating, “One of the

elements of an ‘inverse condemnation’ case that a plaintiff must prove is that the government

performed intentional act(s).” This element is important in today’s case because Plaintiffs have

consistently based their claim on the failure of the County to fully implement the Pate Plan,

combined with its alleged approval of “unmitigated” private development. Mays’ third expert report,

for example, assigns two causes for the flooding: “[u]nmitigated land development, approved by the

County,” and “[f]ailure of the [District] to fully implement the 1984 Pate Plan.” But the law does

not recognize takings liability for a failure to complete the Pate Plan, despite Plaintiffs’ attempt to

151 S.W.3d 546, 555 (Tex. 2004) (emphasis added).

8

Id. at 550, 552.

9

142 S.W.3d 310, 314 (Tex. 2004) (emphasis added). See also id. (“Our earlier jurisprudence has left open

10

the possibility that liability may be predicated on damage that is necessarily an incident to, or necessarily a consequential

result of, the act of the governmental entity.”) (emphasis added, internal quotation marks omitted); State v. Hale, 146

S.W.2d 731, 736 (Tex. 1941) (holding that to be liable for a taking, the government must “perform certain acts in the

exercise of its lawful authority . . . which resulted in the taking or damaging of plaintiffs’ property”) (emphasis added).

Likes, 962 S.W.2d at 505.

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somehow bundle that inaction with the affirmative conduct of approving development. Assuming

all other elements are met, liability for the taking of Plaintiffs’ properties can derive, if at all, from

the County’s affirmative acts of approving development.

2. Specificity

In addition, a specificity element runs through our jurisprudence. The caselaw indicates that

in order to form the requisite intent, the government ordinarily knows which property it is taking.

For example, Jennings describes the intent requirement as covering situations where “a

governmental entity is aware that its action will necessarily cause physical damage to certain private

property.” The government must know that “a specific act is causing identifiable harm” or know 12

that “specific property damage is substantially certain to result from an authorized government

action.” We have not recognized liability where the government only knows that someday,

13

somewhere, its performance of a general governmental function such as granting permits or

approving plats will result in damage to some unspecified property.

3. Public Use in this Anti-Regulatory Takings Case

This most certainly is not an ordinary regulatory takings case, one where the plaintiff

complains that the government through regulation so burdened his property as to deny him its

economic value or unreasonably interfere with its use and enjoyment. Today’s case does not fit this 14

Jennings, 142 S.W.3d at 314 (emphasis added).

12

Id. (emphasis added); accord City of San Antonio v. Pollock, 284 S.W.3d 809, 821 (Tex. 2009).

13

See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex. 1998) (“A compensable regulatory taking

14

can also occur when the governmental agencies impose restrictions that either (1) deny landowners of all economically

viable use of their property, or (2) unreasonably interfere with landowners’ rights to use and enjoy their property.”).

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body of takings jurisprudence and is in a sense its antithesis. First, Plaintiffs are not complaining

about regulation of their property but regulation of other private properties. Second, the complaint

is not excessive regulation, but insufficient regulation via the alleged approval of “unmitigated

development.” Plaintiffs similarly complain that in abandoning the Pate Plan the County did not

regulate enough.

This uncharted theory should give the Court pause to ponder whether the claim, even if

factually supported, is the stuff of a constitutional taking. If a private developer, after routine

approval of its plat, uses its property in a manner causing damage to other properties, might the

remedy lie against the developer rather than the county? One can certainly argue that if the 15

government’s alleged affirmative conduct is nothing beyond allowing private developers to use their

property as they wish, the more appropriate remedy is a claim against the private developers rather

than a novel takings claim against the government. The homeowners in fact sued private developers

and other private parties, and neither side contends that remedies against such parties do not exist.16

One way of analyzing this question is through the element of public use. Article I, section

17 of our Constitution provides for compensation where the property is “taken, damaged or

destroyed for or applied to public use.” We have recognized that a taking may occur “if an injury

results from either the construction of public works or their subsequent maintenance and

See City of Keller, 168 S.W.3d at 833 (O’Neill, J., concurring) (stating that review of subdivision plats “is

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intended to protect the city’s residents; it is not intended to transfer responsibility for a flawed subdivision design from

the developers to the municipality”).

See id. at 835 (O’Neill, J., concurring) (“[W]hen a private development floods neighboring land, the owner

16

of the damaged property will ordinarily have recourse against the private parties causing the damage.”) (citing TEX.

WATER CODE § 11.086).

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operation,” but we have not held that the public-use element is met where the government does 17

nothing more than approve plats or building permits for private development.

Plaintiffs argue that the public-use element is met here because we held it was met in City

of Keller v. Wilson. That case is factually distinguishable. In City of Keller, the city adopted a master

drainage plan that called for a drainage easement on land belonging to the plaintiffs, the Wilsons.18

The easement was to contain a ditch, and the plan originally called for the city to condemn 2.8 acres

of the Wilson propertyfor construction of the ditch. The ditch would traverse the Wilsons’ property 19

and other properties and terminate in a creek. Developers were required to comply with the plan, 20

and built a ditch on an adjacent property, the Sebastian property, but made no provision for a

drainage easement across the Wilsons’ property. The city built a culvert to the creek, but it did not 21

connect the ditch to the culvert as planned because neither the city nor the developers purchased an

easement on the Wilsons’ property, nor did they extend the ditch across the Wilson property as

planned. The result was that the Wilson property would flood when it rained. Without any 22 23

analysis of the public-use element, we agreed with the court of appeals that this element had been

Likes, 962 S.W.2d at 505.

17

168 S.W.3d at 809.

18

See City of Keller v. Wilson, 86 S.W.3d 693, 702 (Tex. App.—Fort Worth 2002), reversed, 168 S.W.3d 802

19

(Tex. 2005).

Id.; City of Keller, 168 S.W.3d at 808.

20

City of Keller, 168 S.W.3d at 808.

21

Id.

22

Id.

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satisfied, but we ultimately held that the intent element had not been established, due to lack of

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“proof that the City knew the plans it approved were substantially certain to increase flooding on the

Wilsons’ properties.”25

City of Keller is factually distinguishable because the city there planned to condemn an

easement and build a ditch across the plaintiffs’ property, knowing drainage across that specific

property was part of the master plan. The jury found that the failure to build that leg of the ditch

resulted in flooding on the Wilson property. As the court of appeals reasoned:

Clearly, had the City used its powers of eminent domain to condemn a portion of the

Wilson property for an easement, that use would have been a “public use” to

implement the City’s Master Drainage Plan. The fact that the City chose not to

condemn any of the Wilson property and to instead, in violation of the Plan, allow

the water flowing from the Sebastian easement to discharge, uncontrolled, across the

Wilson property shows that the invasion of the Wilson property by the water flowing

from the Sebastian easement was for “public use.”26

Hence, the public-use element as to the particular plaintiffs was not established merely by the

approval of private development on other properties. In today’s case, there was no comparable 27

proof that the County intended to purchase easements on Plaintiffs’ particular properties and

construct drainage facilities as part of a master plan, such that with or without such easements and

drainage facilities runoff would under the plan traverse the plaintiffs’ properties. The public-use

Id. at 830.

24

Id.

25

City of Keller, 86 S.W.3d at 708.

26

The court of appeals expressly held that “the City’s liability is not based merely on its approval of the

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developer’s plans.” Id. at 701 n.2. See also City of Keller, 168 S.W.3d at 833 (O’Neill, J. concurring) (“[T]he City’s mere

approval of the private development plans did not result in a taking for public use, as the constitutional standard requires

for a compensable taking.”).

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element was more apparent in City of Keller because with or without the easement and ditch the

plaintiffs’ land would by city design be available to carry runoff to the creek. Similarly, in Gragg,

the defendant water district denied that it had inverselycondemned ranch propertybyreleasingwater

through reservoir floodgates, but counterclaimed for a flowage easement if the court found that the

property had been inversely condemned. The trial court granted such an easement on the portion of

the ranch subject to flooding. And in Kopplow Development, Inc. v. City of San Antonio, when the 28

City decided to build a detention facility it “knew the project would inundate part of [plaintiff]

Kopplow’s property before it ever began construction, prompting the City to seek a drainage

easement from Kopplow.” In today’s case, in contrast, whether viewed through the lens of intent 29

or public use, there was no evidence that the County ever had designs on Plaintiffs’ particular

properties, and intended to use those properties to accomplish a specific flood control measure.

I also find the United States Supreme Court’s landmark decision in Kelo v. City of New

London factually and legally distinguishable. In Kelo, a city authorized a private nonprofit entity 30 31

to condemn property as part of an economic revitalization plan. The city claimed and the Court 32

accepted that the public-use requirement was met because the plan would enhance the overall

Gragg, 151 S.W.3d at 550.

28

399 S.W.3d 532, 537 (Tex. 2013).

29

545 U.S. 469 (2005).

30

Kelo was a federal takings case, but we have recognized that federal and Texas takings jurisprudence are

31

generally consistent. See Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 477 (Tex. 2012); Edwards Aquifer

Auth. v. Day, 369 S.W.3d 814, 838 (Tex. 2012).

Kelo, 545 U.S. at 473–75.

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economic health of the community. But Kelo was not an inverse condemnation case like today’s 33

case. In Kelo, the government, through an agent, condemned plaintiffs’ properties for an alleged

public purpose. Indisputably the plaintiffs’ properties were taken from them by government action.

In today’s case, where the only affirmative conduct that allegedlydamaged Plaintiffs’ properties was

the approval of private development, there is in my view a real question whether a taking by the

government even occurred, that is, whether the homeowners’ claim even belongs in the world of

takings jurisprudence and is properly analyzed as a takings claim. In Kelo the plaintiffs argued that 34

there was no public use within the ambit of the federal Takings Clause, in hopes of disallowing the

taking of their land; here the Plaintiffs are in a completelydifferent posture, arguing that the approval

of private development was a public use, so as to establish that a taking within the ambit of the Texas

Takings Clause actually occurred. In light of these factual and legal distinctions, Kelo does not

compel a result one way or the other in today’s case.

The Washington Supreme Court considered a case where plaintiffs filed an inverse

condemnation claim against a county, alleging that plaintiffs’ property flooded after the county

approved a development plat for a neighboring property. The Court held that mere approval of the

plat could not support a takings claim:

If all the County had done was to approve private development, then one of the

elements of an inverse condemnation claim, that the government has damaged the

[plaintiffs’] property for a public purpose, would be missing. There is no public

Id. at 483–84.

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 I understand JUSTICE LEHRMANN’s dissent to urge that if a taking for public use is compensable, then surely

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a taking for private use would also be compensable. I certainly agree. My point here, however, is to question, under the

rubric of public use, whether the Court should recognize that a taking even occurred given the facts of today’s case.

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aspect when the County’s only action is to approve a private development under then

existing regulations. Furthermore, the effect of such automatic liability would have

a completely unfair result.35

The approval of private development in this case—doing nothing more than allowing private

parties to use their properties as they wish—presents at best a highly attenuated basis for meeting

the public-use element of a takings claim. In light of this and other considerations, I find the claim

legally deficient.

C. The Unavoidable Tension Between Takings Jurisprudence

and Sovereign Immunity

While compensation to those whose property is taken for public use is an important and

constitutionally imposed obligation of democratic government, governments must also be allowed

to survive financially and carry out their public functions. They cannot be expected to insure against

every misfortune occurring within their geographical boundaries, on the theory that they could have

done more. No government could afford such obligations. Justices Jackson and Goldberg both

recognized that the Bill of Rights is not a suicide pact.36

This Court has repeatedly, recently, and unanimously recognized that strong judicial

protection for individual property rights is essential to “freedom itself.” Locke deemed the 37

Phillips v. King Cnty., 968 P.2d 871, 878 (Wash. 1998).

35

Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting) (“There is danger that, if the

36

Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights

into a suicide pact.”); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) (“[W]hile the Constitution protects

against invasions of individual rights, it is not a suicide pact.”).

Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex., LLC, 363 S.W.3d 192, 204 (Tex. 2012).

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preservation of property rights “[t]he great and chief end” of government, a view we echoed almost 38

300 years later, calling it “one of the most important purposes of government.” Individual property 39

rights are a foundational liberty, not a contingent privilege. They are “fundamental, natural, inherent,

inalienable, not derived from the legislature and as preexisting even constitutions.”40

But there is always tension between the compensation obligation of the Takings Clause and

the necessary doctrine of sovereign immunity, also a doctrine of constitutional significance. We 41

long ago recognized that where government conduct caused damage to a plaintiff’s property,

One’s normal reaction is that he should be compensated therefor. On the other hand,

the doctrine of the non-suability of the state is grounded upon sound public policy.

If the state were suable and liable for every tortious act of its agents, servants, and

employees committed in the performance of their official duties, there would result

a serious impairment of the public service and the necessary administrative functions

of government would be hampered.42

D. Application of Takings Law to the Facts Presented

Since inaction cannot give rise to a taking, we cannot consider any alleged failure to take

furthersteps to control flooding, such as the failure to complete the Pate Plan. Since a taking cannot

be premised on negligent conduct, we must limit our consideration to affirmative conduct the County

JOHN LOCKE, SECOND TREATISE OF GOVERNMENT, Chap. IX, Sec. 124 (C.B. MacPherson, ed., Hackett

38

Publishing Co. 1980) (1690).

Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977).

39

Id.

40

See, e.g., Alden v. Maine, 527 U.S. 706, 733 (1999) (“Although the sovereign immunity of the States derives

41

at least in part from the common-law tradition, the structure and history of the Constitution make clear that the immunity

exists today by constitutional design.”).

Tex. Highway Dep’t v. Weber, 219 S.W.2d 70, 71–72 (Tex. 1949).

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was substantiallycertain would cause flooding to Plaintiffs’ properties and that would not have taken

place otherwise. The only affirmative conduct on which Plaintiffs rely is the approval of private

development. Further, Plaintiffs offered no proof that the Countywas substantiallycertain Plaintiffs’

particular properties would flood if the County approved new housing developments. Plaintiffs did

not even assert such a claim, claiming instead that the County was substantially certain that its

actions in approving “unmitigated development” would result in flooding “in the vicinity of

Plaintiffs’ properties.” Plaintiffs never explained whether the “vicinity” is a few square miles or

hundreds of square miles. They never identified precisely or even approximately the area of

unmitigated development. The Pate Plan described the White Oak Bayou watershed as 110 square

miles in size. Plaintiffs’ expert Mays admitted that “I haven’t been asked to do anything concerning

specific plaintiffs.” The County’s expert, Melvin Spinks, agreed that “Mays was unable to

demonstrate that any actions of Defendants were the proximate cause of flooding of any particular

Plaintiff’s property,” nor did Mays “determine the causation of flooding subdivision bysubdivision.”

In the trial court, the County accurately described Plaintiffs’ particular parcels as “scattered in a

checker board fashion in the upper White Oak Bayou watershed, stretching several miles.”

Further, Plaintiffs offered no evidence that the County was consciously aware that approval

of unmitigated development in one defined area, such as a specific block or neighborhood, was

substantially likely to cause flooding in another specifically defined area of the White Oak Bayou

watershed that included Plaintiffs’ homes. The County offered evidence to the contrary. District

Director David Talbott attested that “[t]he District did not approve of land development knowing

that there was inadequate stormwater runoff mitigation associated with a particular development,”

15
and pointed out that the District was tasked with addressing severe flooding problems not only in

the White Oak Bayou watershed where Plaintiffs resided, but also in the Clear Creek, Greens Bayou,

Cypress Creek, and Brays Bayou watersheds. While Plaintiffs number 400 who suffered flood

damage during three events, Talbott pointed out that Tropical Storm Allison alone flooded 73,000

residences. Talbott and the vice president of Klotz both attested that it is against District policy to

“move a flood”—sparing one neighborhood that would otherwise flood by causing another

neighborhood to flood. Talbott also attested: “Although White Oak Bayou was always a high

priority, with limited District funding the District also had to consider other high priority projects

throughout the County. District funds that were available were allocated to various projects around

the County, with White Oak Bayou receiving an appropriate share.”

This case is qualitatively different from recent cases where we recognized a taking, Kopplow

and Gragg. In Kopplow the city “knew the project would inundate part of [plaintiff] Kopplow’s

property” and sought a drainage easement from Kopplow, the city’s project resulted in onlyone other

property being placed below the 100-year flood plain, and the city obtained a drainage easement on

that other property. In Gragg, one of the flood control district’s experts acknowledged that his own 43

modeling showed that higher than natural flooding would occur on the plaintiffs’ particular ranch

in 10 out of 16 floods, the district’s records showed hundreds of releases by the district sufficient to

cause flooding on the ranch, and there was evidence that the ranch had suffered “a large number of

floods” after the district began the releases, whereas before the district’s actions the ranch had never

Kopplow, 399 S.W.3d at 537–38.

43

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suffered from extensive flood damage. In today’s case, in contrast, the record is devoid of evidence

44

the County knew, at the time it allegedly approved “unmitigated” development, that Plaintiffs’

particular properties would suffer flooding. We recognized in Jennings that a taking occurs when

property is “damaged for public use” in circumstances where “a governmental entity is aware that

its action will necessarily cause physical damage to certain private property.” A conscious decision 45

to damage certain private property for a public use is absent here.

The homeowners contend that Kopplow and Gragg are helpful to their case because both

decisions recognized that the recurrence of flooding is probative on the issue of intent. But we also 46

held, in City of San Antonio v. Pollock, that when deciding intent in the takings context, “[t]he

government’s knowledge must be determined as of the time it acted, not with benefit of hindsight.”47

This rule limits the persuasiveness of Plaintiffs’ argument. Plaintiffs alleged in their petition that

“[m]ost, if not all of the plaintiffs herein, had never flooded before September, 1998,” the Hurricane

Francis flooding and the first of three floods about which they complain. Their recurrence argument

to us is that “Plaintiffs’ homes flooded three times in five years in 1998, 2001, and 2002.” They

contend these three flooding events are “probative evidence of intent under this Court’s holdings in

Kopplow and Gragg.” But their expert, Mays, opined that the unmitigated development that caused

Gragg, 151 S.W.3d at 550, 552.

44

142 S.W.3d at 314.

45

See Kopplow, 399 S.W.3d at 537 (stating that “[w]ith flood water impacts, recurrence is a probative factor

46

in assessing intent and the extent of the taking”); Gragg, 151 S.W.3d at 555 (stating that “[i]n 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”).

284 S.W.3d 809, 821 (Tex. 2009).

47

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the flooding of their homes ended no later than 1990, years before the three flooding events.48

Plaintiffs’ recurrence argument is made with the benefit of hindsight.

The determination of whether a taking has occurred is ultimately a question of law for the

court. The determination does not always lend itself to simple rules and sometimes turns on the 49

confluence of particular circumstances presented. Iwould hold the homeowners have not presented 50

a cognizable takings claim where (1) the County never desired to cause flooding, but desired only

the opposite, (2) it undertook significant efforts to prevent flooding, spending tens of millions of

dollars over many years, (3) the County never intended, as part of a flood control plan, to use

Plaintiffs’ particular properties for detention ponds, drainage easements, or the like, (4) the only

affirmative conduct allegedly causing the flooding was approval of private development,

(5) Plaintiffs offered no proof that the County was substantially certain that its approval of

development would result in the flooding of Plaintiff’s particular lots, and (6) even by Plaintiffs’

reckoning the flooding resulted from multiple causes—Acts of God, the activities of other 51

See supra note 2.

48

City of Austin v. Travis Cnty. Landfill Co., 73 S.W.3d 234, 241 (Tex. 2002).

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For example, courts have recognized their inability to state a “set formula” for when regulatory takings occur.

50

Edwards Aquifer Auth., 369 S.W.3d at 839 (quoting Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124

(1978)). “The [United States] Supreme Court has frequently noted that whether a particular property restriction is a

taking depends largely upon the particular circumstances in that case.” Hearts Bluff Game Ranch, Inc. v. State, 381

S.W.3d 468, 477 (Tex. 2012) (brackets, internal quotation marks omitted).

Their brief to us, for example, states the obvious: “Of course, without excessive rainfall no flooding would

51

have occurred.”

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defendants, the alleged failure to complete the Pate Plan, and the approval of private development. 52

This is not a case where the government made a conscious decision to subject particular properties

to inundation so that other properties would be spared, as happens when a government builds a flood

control dam knowing that certain properties will be flooded by the resulting reservoir. In such cases

of course the government must compensate the owners who lose their land to the reservoir.

I fear Plaintiffs’ theory of takings, which the Court accepts, vastly and unwisely expands the

liability of governmental entities. It would appear to cover many scenarios where the government

has no designs on a particular plaintiff’s property, but only knows that somewhere, someday, its

routine governmental operations will likely cause damage to some as yet unidentified property. I

would not embrace a new approach to takings that might effectively abolish much traditional faultbased tort law, swallow much of sovereign immunity, and disrupt the carefully crafted waiver of

immunity found in the Tort Claims Act. We have stated that sovereign immunity is universally

recognized and fundamental to the nature and functioning of government, and that we leave it to the

Legislature to make changes to that doctrine, as it has done in the Tort Claims Act. Therefore, I

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See, e.g., Kerr v. Harris Cnty., 177 S.W.3d 290, 295 (Tex. App.—Houston [1st Dist.] 2005, no pet.)

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(“Plaintiffs also sued Jones & Carter, an engineering company involved in the development of Brookhollow subdivision,

alleging that Jones & Carter ‘was negligent in failing to provide for adequate storm water detention/retention facilities

or in some other manner [to] adequately mitigate the increased storm water runoff created in conjunction with their

developments in the White Oak Bayou watershed upstream of Plaintiffs’ properties.’”); Kerr v. Tex. Dep’t of Transp.,

45 S.W.3d 248, 249 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (“Plaintiffs specifically pleaded that TxDot’s

construction of feeder lanes on Beltway 8 and reconstruction of portions of Highway 290 in the 1980s and 1990s

increased stormwater runoff that ‘detrimentally impacted’ plaintiffs, who were downstream of these activities.”). As noted

above, Plaintiffs also sued municipal utility districts and private developers.

We have noted thatsovereign immunity is “inherent in the nature ofsovereignty” and “an established principle

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of jurisprudence in all civilized nations.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003) (quoting

THE FEDERALIST No. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed., 1961) and Beers v. Arkansas, 61 U.S. 527,

529 (1857)). “We have held . . . that the Legislature is better suited to balance the conflicting policy issues associated

with waiving immunity.” Id. See also Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex.

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believe so sweeping an expansion of takings jurisprudence should be made only for the soundest

reasons—reasons that escape me here—given the corresponding and massive contraction in the

scope of sovereign immunity that would follow. While the right to compensation for a taking is

constitutionally mandated, sovereign immunity is also a matter of constitutional significance.

Plaintiffs’ notion of a taking, embraced by the Court, is expansive indeed. Take, for example,

a government such as the City of Austin that supplies electric utility service to its citizens. It surely

knows that in running power lines throughout the service area, fires or other damaging events will

occasionally occur when acts of nature knock down lines or poles. Witness the recent devastating

fires in the Bastrop area allegedly caused by power lines. The government also surely knows that

some private properties—those adjacent to the lines, or, in Plaintiffs’ vernacular, “in the vicinity”

of the lines, are especially vulnerable to such damage. Under the Court’s decision, an Act of God,

such as a bolt of lightning, that causes a high-voltage line to topple or a transformer to blow, which

in turn causes damage to a private property, is arguably a taking on the notion that properties near

the grid have been “sacrificed” for the greater public good of providing electricity service to the

whole community. Negligent maintenance of the utility grid is irrelevant, so long as the city is

substantially certain that fires somewhere, someday, will occur along the grid, as surely is the case.

It matters not that a storm contributed to the downed line, since in today’s case storms also played

an essential role. Traditional fault-based tort law, sovereign immunity, and the Tort Claims Act are

2002) (“We have consistently deferred to the Legislature to waive sovereign immunity from suit, because this allows the

Legislature to protect its policymaking function.”); Guillory v. Port of Houston Auth., 845 S.W.2d 812, 813 (Tex. 1993)

(“Since the Tort Claims Act was passed in 1969, we have repeatedly held that the waiver of governmental immunity is

a matter addressed to the Legislature.”) (internal quotation marks omitted).

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irrelevant if the claim is framed as a taking. The hypothetical is arguably a stronger case for a taking

than today’s case, since providing an electric utility grid is unquestionably a public use, whereas in

today’s case the only affirmative conduct allegedly resulting in a taking was granting approval of

private development, perhaps not a public use at all.

Or take anylarge city, school district, or other governmental entitythat has a fleet of vehicles.

The government surely knows its vehicles regularly have accidents causing damage to private

property. The government also surely knows that collisions will occur with greater frequency in

certain areas, such as along bus routes or near the garbage truck depot, school bus lot, etc., where

the government’s vehicular traffic is concentrated. Under Plaintiffs’ theory, each accident resulting

in damage to private property in a higher-risk area would appear to be a compensable taking, again

on the theory that this property has been “sacrificed” for the greater good of providing city-wide

public transportation. The claim is arguably stronger than the claim in today’s case, since (1) there

is no Act of God that can be assigned at least part of the causation, (2) the city in the hypothetical

is not just substantially certain but absolutely certain that accidents will occur, and (3) providing a

city bus system is unquestionably a public use, unlike approval of private plats. No need to prove

negligence on the city’s part; the intent element is met because the city is substantially certain that

accidents happen. No need to predict exactly where the accidents will occur, since in today’s case

the homeowners never contended or offered proof that the County formed any intent with respect

to their particular properties. The plaintiffs’ expert on the intent element conceded, “I haven’t been

asked to do anything concerning specific plaintiffs.”

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Or take any large city with its contingent of high-rise buildings. A city may know that

somewhere, someday, a fire will occur on a floor the city fire trucks cannot reach. Suppose a city has

a study in hand recommending larger ladder trucks, and suppose it fails to purchase the trucks due

to funding problems or other priorities. Underthe homeowners’ approach, if a fire occurs on a higher

floor of a building, and damages adjacent properties, those adjacent owners have a takings claim if

they can show that a larger ladder truck would have contained the fire. It does not matter whether

the city’s conduct was reasonable given its tax base or funding priorities. In today’s case, too, the

record shows that funding issues played a role in the County’s decisions. All that matters is that the

city issued building permits, knowing that somewhere, someday, a fire would likely occur on an

upper floor. This knowledge supplies the intent element, and the building permits supply the

causation element, regardless of whether an act of nature started the fire. It does not matter whether

the building in issue was privately owned, since according to Plaintiffs private ownership of the

property approved for development is no bar to recovery.

Today’s decision encourages governments to do nothing to prevent flooding, instead of

studying and addressing the problem. As the Court recognizes, the homeowners do not urge the

existence of a general legal duty on the part of the County to prevent flooding, breach of which

would give rise to a private cause of action. Their claim instead is that the County failed to complete

the Pate Plan and approved private development, behavior allegedly resulting in a taking of their

properties. If various state and federal governmental entities had not commissioned and conducted

detailed studies of regional flooding, the homeowners would have no basis for contending that the

County was substantially certain of the link between development and flooding, and would not be

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able to use that knowledge against the County. If the County had undertaken no efforts to control

flooding, the homeowners could not assert the failure to complete the Pate Plan as a basis for

liability.

III. Conclusion

By accepting the homeowners’ capacious, attenuated approach to takings, the Court

unnecessarily expands takings liability. By framing their claim as a constitutional taking, the

homeowners’ claim is unbounded by any statutory caps on compensatory damages the Legislature

might otherwise impose. I fear today’s decision will make the government an insurer for all manner

of natural disasters and inevitable man-made accidents. It endangers the ability of governments to 54

finance and carry out their necessary functions, the basis for sovereign immunity.

The plea to the jurisdiction was well-taken and should have been granted. I would reverse

the court of appeals’ judgment and dismiss the case.

_______________________________________

Don R. Willett

Justice

OPINION DELIVERED: June 12, 2015

See Phillips v. King Cnty., 968 P.2d 871, 878 (Wash. 1998) (holding that county is not liable for a taking if

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it only approves a private development plat, and stating: “If the county or city were liable for the negligence of a private

developer, based on approval under existing regulations, then the municipalities, and ultimately the taxpayers, would

become the guarantors or insurers for the actions of private developers whose development damages neighboring

properties.”).

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