Reversed and Rendered and Opinion filed October 6 , 2022.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00414

- CV

SAN JACINTO RIVER AU THORITY , Appellant
V. EDGAR GONZALEZ, ET A L
. , Appellee s
On Appeal from t h e Co unty Civil C ourt at Law No
. 2

Harris Coun ty, Tex a s Trial Court Cause No. 1137397



### O P I N I O N T his case involves takings claims by 8 5 plain tiff s under the Texas Constitution against a r i v er authority based on the authority ’ s release of water from L ak e Conroe in to the San Jacinto River duri ng Hu rr i can e Harvey that allegedly

caus ed flooding that allegedly dama ge d the plaintiffs ’ homes

. T he a uthority challenges the trial c ourt ’ s denial of its plea to the juris di ct ion as to the takings claims and asserts that the plaintiffs have not s hown a wai ver o f the a uthority ’ s governmental immunity as to the plaintiffs ’ other claims

. We reverse and render

.2 I. F AC TUAL AN D P ROCEDURAL B ACKGROUND
Hu rricane Harvey and the resulting flooding in south eas t Texas has resulted in multi ple lawsuits and appellate decisio ns. I n this case, we deal with claims involving the release of water from L ake C o nroe. Appellees /

plaintiffs Edgar Gonzalez and 84 other in dividuals 1 (collecti vel y the “ Gonz alez P a rties ” ) filed this suit against appella nt/defendant S an Jacinto River Author ity ( the “ Authority ” ). T h e Gonzalez Parties allege th at they l ive in h omes on a t otal of 61 d ifferent properties. They assert that the Auth ority is a governmental ent ity that m a intai ns Lake Conro e and the Lake Conroe D am. In la te Aug ust 2017, Hurricane Har vey m a de landfall along Texas ’ s Gul f Coast and produced high r ainfall amoun ts in Texas , including in Harris and Montgomery

cou nties

. The Go nzal ez Parties a llege that by about 12:30 a.m. on August 27, 2017, Hurrica ne Harvey had dump ed so much water in to Lak e Con roe th at the A uth ori ty decided to open the Lake Conr oe D a m to re lease wa ter from the la ke. According to the Gonzale z Par ties, over the n ext three days, the release rate of water from Lake Conroe through the dam set and b roke new records, event ually cu lmina ting in a

1 The nam es of a l l of th e Gonza lez Pa rties are as fo llows: E dgar Gonzal ez, Monica Gonz ale z , Lis a Ag n ew , Daro l yn Bu tler , Bertha E. Stewart , Jose O. Erazo , Carm e n Ro d riguez de E razo , J o se Marro quin , R ebe cca Hernandez , E li Ortiz , Emily Ortiz , O rlando Locayo , Matilde L ocayo , R onnie M oors , I ngrid Plevka , Pr iscil la Zamor a , L awrence Culton , Shani k ka Culton , J o r dan Mora l es , D onna Brown , John Cla ncy , John Kish , Peggy Jo n e s , Andre Hatt er , Mary H atter , H arold C orm ier , Wanda Cormier , Manuel Jacks on , Jose ph Joe , Tawania Joe , Dec trick E d wards , Samanth a Edwa rds , Prest on Da vis , Chi quit a Davis , Kenny Coston , Go lden C osto n , Danesa Sa mue ls , Tamara Curl , Alma Lagunas , Charles McFar l a n d , Dionne Mc Fa rland , W alter Jo hnson , Jac qui l ine Johnson , Shonda Espinoza , Lawren ce Duhe , Natasha Atkins , Israe l Cervant es , Ama nda Ce rvantes , S taci McFarlan d , W arner C handler , Amber Cha ndler , Eil e en Shim

A gi mud ie , Sam Al Hawamdeh , H usam Al Hawamdeh , Rene T a ri o , Juan Su ar ez , Reg i na Frebe rg , Bil ly Wes t , Ramon Mosqueda , Maria Mosq ueda , Ma rk Melchor , Gloria Melch or , Ta n a Lynne Gilliar d , Rob ert Henric kson , Carl Wi llia ms , Lou ise Williams , K ish awna W righ t , James B ul loc k , H ugo Santos , Katheri ne Sells , Cilica Edwa r d s , Natasha Ga te s , John Giovane l li , Ant hon y L i mon , Claudia Ledezma , Marely Ledezma , Viliami Feletoa , Rosem arie P a rrino , A licia L ewis , Sunday Elu yemi , Armida Carb allo , C harles R ogers , Jos ie Rog ers , Maria R a u da , a nd S hamir Westbrooks

.3

rele ase rate of 79,100 cubic feet of wate r per s econd ( “ cfs ” ) , surpassing the record
set in 1994

. The Gonzalez Parties contend that as a result of thes e record

- break ing releas es fr om Lake Conroe, water from Lake C onro e caused the G onzalez Pa rties ’ homes to flood , resulting in seve re prope rty dam age.
The Gonzalez Parties have asserted the following c laims against the Autho ri ty : (1 ) a n inverse

- condemnation or taking s claim under article I, sec tion 17 of the Texa s Const itution , (2) a nuisance cla im , and (3) a p urported c laim for
gross ly negligen t maintenance and operation of the Lake Conroe Dam

. The Go nzalez Parties claim that th eir homes wo uld not ha ve flooded but for the water released by t he Authority from L ake Co nro e. The Gonzalez Par ties allege that the Authority was aware that water releases from Lake Conroe in 1994, 1998, 2001, 2 002, 20 15, and 2016 caused downstream fl o odi ng in parts of K ingwood, Humble, and othe r places downst ream of the Lake Conroe D am. T he Go nzal e z Parties all ege tha t the Authority took t he ir homes in tentionally.
The Gonzal e z Parties ackno wledge in their l ive p eti tion that the A uthori ty is

a gove rnmental entity general ly en titled to governmental imm unity f ro m suit ; ho wever , the Go nzal e z Parti es assert the t akings pro vision of the T exas Co nstitutio n as a wai ver of g overnmental immunity that a llows them to re c eive jus t
compens ation for the takings alleged in the ir petit ion

. The Gonzalez Parties also
assert in th eir pe tition that governmenta l imm unity does n ot shield the Authority from liabil ity for “ inten tional, non

- negligent nu is ance and g ross negligence rela ting to t he imp r o p er ma intenance of [the Authority ’ s] property. ” The Authority filed a plea to the juris dictio n asserting that its go vernm ental4

immuni ty barred all of the Gonzale z Parti es’ claims ( “ J urisdic tional Plea ” )

. 2 T he Authority argued that the evi dence bef ore the trial c ourt concl usively demonstrated that the Go nzalez Parties cannot prove that the Au thority caused a taking of an y pro perty owned by one of the Gonzalez Parti es. The Authority asse rted that even if

no water h ad been released from the Lake C onroe Dam, ea ch of the Gonzalez Partie s ’ properties would have floo ded du ring the Harvey storm event

. The Authority co ntended tha t the evidenc e negates the requisi te intent element of the Gonzalez Parties ’ takings claims

. A c c o r d i n g t o t he Authority , the undis puted

e vidence shows t h a t the Gonzalez Part ies cannot d emonstrate the Authority knew or could ha ve known that any r elease of w ater fr om the Lake Conroe Dam woul d or was substantially ce rtain to cause flooding on the s pecific, individual property of any of the Gon zalez Parties , which the Authority conte nds is required to

suc c essfully demonstrate a tak ings claim

. The A uthority al so ch allenged the Gonz alez Parties ’ other two claims, asserti ng that (1) abs ent a statutory w aiver of immunity, a government al entit y is im m une from suit for a nuisance claim un less the claim rises t o the level of a constitution al taking under A rticle I, S ectio n 17 of the Texas Constitution ; (2) governmental immunit y bars a ny taking

- by

- nu i s ance cl aim for the same reas ons asserted by th e A utho rity against the ta ki ngs claim; (3) th e Texas Tort Claims Ac t does not waive the Authorit y ’ s governmental immunity; a nd (4 ) the on ly waiver of government al immunity relied on by the Gonzal ez P arties is the t aki ngs provision of the Texas Constitution

. The Authority attached t o the J urisdictio nal P lea (1) a declara t ion by Charles

2 Though a party may f

ile a no

- evid e nc e motion for summary judgm ent challenging th e trial court ’s subject

- matter jurisdiction, t he Aut hority did not d o so i n today ’s case. Se e Tow n of Shad y Shore s v. Swanson , 590 S.W.3 d 544, 551

– 5 2 (Tex. 2019)

. In stead , the A u thori ty challenge d the trial cou rt ’s subje ct

- m att er jurisdictio n by a plea to the jurisdiction.5

Gilman, Jr. , the Authority ’s D irect or of W ater Resourc es and Flood Management , (2) a declaration by Ma rk E. Forest, a hydrology expert retained by the A uth ority, and (3) a decla ration by Hector Olmos , a Vice President of Freese and Nichols, Inc. , a com pany that has prov ide d consulting serv ices to the Authorit y.
The Gonzalez Partie s re sponded in opposition and submitted some evidence, but th ey did not sub mit any expert testimony

. The Go nzalez Parties asserted various ob

jections to the form o f the Authority ’ s evidence , a s well as objections that Ex hibit s C

- 5 an d C

- 7 attached to Fores t ’ s decl aration are conclusory

. T he trial

co urt signed an order i n which it denied the J urisdiction al Pl ea only as to the takings claim. The trial court d id not ru le on the J urisdiction al Plea as to t he other
two claims, and the tria l court did not rule on any of the Gonzalez Pa rties’ obje ctions. The next day, the Autho rity f iled a notice of a p peal, perfecti ng this interlocutory appeal under secti on 51.014( a ) (8) of the Civil Practi ce and Remedi es Code and t r i g g e r i n g the s tay u nder secti on 51.014(b)

. Se e T e x
. C i v
. P r a c

. & R e m

. C o d e A n n

. § § 5 1

. 0 1 4 (a)(8), ( b ) ( W e s t , W e s t l a w t h r o u g h 2021 C

. S.)

. Two days later the G onzalez Parties filed a written reque st aski ng the trial court to rule on their objections to th e Aut horit y ’ s evide nce a nd object i ng to the trial court ’ s alleged

re fu sal to rule on the obje ctions

. On the same d ay as th e written request, the Authority move d to stri ke th e Gonzal ez Parties ’ filing based on the s tay of all proceedings triggere d by t he Auth ority ’ s ap peal. O ur re cord does not contain a ruling from the tri al cour t on the Gonz alez Parties ’ objection s to the A u thority ’ s evidence , o n t he request for such a ruling , or on the Autho r i ty ’ s mo tion t o strike. II. I S SUE S AN D A N A L Y S I S
The Authority is a conservation and re cl ama ti on district created in 1937 as a political subdivision of the S tate of Texas. See Act of May 12, 1937, 45th Leg., R.S., c h. 426, § 1, 1937 Tex . Gen. Laws 861, 861 (creating th e Authority and6

naming it the “ San Jacinto River Con servation and R eclamat io n D is trict ” ) ; Act of May 14, 1951, 52nd Leg., R. S., ch. 366, § 1, 19 51 Tex. Gen. Laws 617, 617 (renaming the Authority the “Sa n Jacinto River Authority” ) ; San Jacinto River A uth. v . Medina , 627 S .W .3d 6 18 , 621 ( Tex. 2021). In 1973, the Authority

c o mplete d the c onstruction of an earthen dam across the We st Fork of the San J acinto River (the “ Lake Conroe Dam ” ) to create Lake Conroe

. See Medina , 627 S.W .3d at 621

. The Authority has ope rated and maint ained L ake Conroe and the Lake Conroe Dam since that time. Se e i d

. The Authority is a political subdivision of the State of Tex as that gener all y is

en titled to g overnmental immunity. Se e Medina , 627 S.W .3d at 62 2

. Governmental immunity fro m suit defeats a trial court’s subject matter jurisd iction and thus
proper ly is a sserted in a plea to the jurisdiction

. See Ol ivares v. Br own & Gay Engineering, Inc. , 401 S.W.3d 363, 369 (Tex. App.

— Hous ton [14th Dist.] 2013 , aff ’d , 461 S.W.3d 11 7 , 1 19 ( Tex . 201 5). We re v iew de novo the trial court ’ s ruling

on a plea to th e juris di cti on

. Id.
A. Did the trial court err in denyin g the Jurisdictional Plea as t o the G on zale z Parties ’ takings claim s because the evidence proves as a matte r of law that the Gonzalez Part ies c an not pr o ve causatio n ?
The Texas Constitu tion waives government al im mu nity for a viabl e inverse

condemnat ion or t akings claim under a rticle I, section 17 of the Texas Constitution. See Tex. Const. art. I, § 17(a); El Dorado Land Co., L.P. v. City of McKinney , 395 S .W.3d 798, 801 (Tex. 2013); Stee le v. City of Houston , 6 03 S. W.2d 786, 791 (T ex. 1980). If a pla intiff c annot establish a vi able takings claim agai nst a governmental entity, then there is no waiver of governmental immunity under article I, section 1 7 of th e Texas Constitution, and the tr ial court lacks jurisd ic tio n. See Tex. Const. art. I, § 17(a); T ex. Dep’ t of Transp. v. A.P. I. Pipe & Supply, LLC , 397 S.W.3d 162, 166 (Tex. 2013). Proximate cause is an essential7

element of a takings claim. See Heart s Bluff Game Ranch, Inc. v. State , 381 S.W.3d 468, 483 (Tex. 20 12)

. For a government al entity to be lia ble for a takings claim , the governmental entity’s intentional action must have been a proximate cause of the taking or damaging of the claimant’s prop erty. S ee State v. Hale , 146 S.W.2d 731 , 736 (Tex. 1941). The det e rmin ation of whether a taking has occurred is not formulaic given the legal and factual complexities sometimes presented, and this determination may turn on the confluence of particular circ umstanc es. See Harr is County Flood Cont rol Dist. v. Kerr , 499 S.W

. 3d 7 93 , 806

– 07 (Tex. 2016 ). In a plea to th e jurisdiction, a pa rty may challenge the p leadings or the existence of jurisdictional facts. Tex. Dep’t of Parks & Wildlif e v. Miranda , 133 S.W .3d 217 , 226

– 27 (Tex. 2004)

. The A uthor ity does not assert th at t h e Gon zale z Parties failed to prope rly plead a viable takings clai m. Inste ad, a s to the a rg uments under the Authority ’s first , second , and th ird issue s , the Authority ’s J uris dictional P lea ch allenge d the existence of jurisdictiona l fa cts

. The jurisdict ion a l chal lenges the Authority raises u nder th e se issues implicate the merits of the Gonzalez Parties ’ ta kings clai m s and the Juris dictional Pl ea involves evidence. Therefor e, we review the evide nce rel evant to the jurisdict ional chal leng e to determine if a f a c t iss ue exists

. Miranda , 133 S.W.3 d at 22 7 ; I n re K.D.H. , 426 S.W .3d 879, 887 (Tex. App.

— Houston [14th Dist.] 2014, no pet.). W e take as true all evidence favorable to the nonmovant , and w e indulge every reasonable inference and

reso lve any doubts in the n onmov ant ’ s favor. Miranda , 133 S.W .3d at 2 28. If the relevant evi dence cr eates a fact qu estion regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdict ion, an d the fact finder will resolve
t he f act issue

. Miranda , 1 3 3 S.W. 3d at 227

– 28 ; In re K.D.H. , 4 26 S.W.3d a t 887

. However, if t he evide nce relevant to the jurisdictional issue is undisputed or fails to raise a fact que stion on the jurisdictional issue, the tr ial court rules on the plea to
t he j urisdiction as a m att e r of l aw

. Miranda , 133 S.W.3d at 22 8 ; In re K. D.H. , 4268

S.W.3d at 887

. I n its fir st i ssue , the Authority as ks , “ Did [the Gonzalez Parties] meet their burden to raise a fact issue that the [ Au thority ’s ] release of water from Lake C onro e Dam was a proxim ate c ause of flooding of their homes, w hen (i) the y do
not live downst ream fro m the Dam, and (ii) offered no proof that thei r properties flooded because of water from Lake Conroe? ” T he first issu e refer s to the jurisdictional challeng e i n whi ch the Authori ty a r g ues that the Gonzalez Parties

ca nnot prove t hat the Authority ’ s release of water from L ake Conroe was a proximate cause of an y taking or damaging of the Gonzalez Parties ’ property. Thus, we rev iew the evidence relevant to th is ju risdictional issue to d e t ermine whether it is undisputed or fails to raise a fact que stio n

. See M iranda , 133 S.W .3d
at 22 8 ; In re K.D.H. , 426 S.W.3d at 887

. 1

. Vari o us Arguments by the Authority (a) Did water from Lake C o nroe reach the Gonzalez Parties ’ homes ? U nder its first issue, the Authority asserts that it is physi cally im po ssib le that any of the molecules of water released from Lake Co nro e during Ha rvey wo uld have reached any of the Gonzalez Par ti es’ hom es becau se: (1) the Gonzal ez Part ies live several miles up t w o d i f f e r e n t s t r e a m s

–– Cypress Creek a n d Spring Cree k ; and ( 2) t o reach the Gonzale z P arties ’ homes , water from Lake Conroe wou ld have had
to flow 4 1 m iles south to its juncture with the se c reeks, an d then several miles
ups tream ag ainst massive flooding coming the other w ay. I n making these assertions , the Authority se e ks to negate the Gonz ale z P arties ’ allegation in th eir live pl eading that “ [ a] s a r esu lt of these record

- breaking release s in the midd le of a major hurri cane, water f rom Lake Conroe eventu ally reached the [t he Gonzalez Part ies ’ ] homes and cau sed severe pr operty damage to them

. ” The Gonzalez Parties presented no evidence that a ny of th e wat er molecules from Lake Conroe9

reached their homes

. We p resume for the sake of a rgument tha t the evi dence
p roves as a matte r of law that none of the water that t he A uthor ity release d from Lake C onr oe rea ched any of the Gonzalez Part ies ’ homes. T he A uthority , however, concedes that is not the end of the inqui ry. The Authority a cknowledges tha t even though Lake C o nroe wa ter did not reach the G onzalez Parties ’ homes, the rele ase

c ould nevertheless still be a “ taking ” if the relea se of Lake Conroe wate r caused

o ther tributaries to back up and flood the Gonzalez Parties ’ homes.

( b ) Did water re le a sed from Lake C o nroe caus e the Gon zalez Parties ’ homes to flood ? The Authority ar gues that its release of w ater from Lake Conroe did not

cause the Gonzalez P arties ’ hom es to floo d . The Au thority bases this argument on several facts. Fi rst, the Authority points out that the area around th e Gonzal ez Parties ’ homes received far more rai nfall that the Lake C o nroe watershed. The Lake C o nroe watershed received approximate ly 20 inches of rain whereas the area along the Spring and Cypress creeks rece ived 30+ inches of rain

. Lake Conroe discharges into th e West Fork of the San Jacinto Riv er an d eventually flow s about 50 miles into Lake Houston. As stated previously, forty

- one m iles south of the Lake C o nroe dam the Spring and Cypress creeks join with the West Fork

. The Authority points
out that wat er released from Lake Conroe accounted for 12% of the inflow in Lake H ouston, whereas water from Spring Creek and Cypress Creek accoun ted for 24% of inflow into Lake Houston. The Gonzal ez Partie s did not contest this data

. Second, the Authority argues tha t timing does not support the G o nzalez Parties ’ argument that the Lake Conroe disc harge caused flooding of their homes. The Authority did not begin releasing water from Lake Conroe until early on Augus t 27, 2017. The Authori ty ’ s experts state that it woul d take 30 hou rs for water from Lake Con roe to trave l the 41 miles to the confluen ce with Spring and10

Cypress creeks. By that time, the Wes t Fork of the San Jacinto was already at flood stage. Again, the Gonzalez P arties did not contest this data.
The Autho rity thus argue s that the G o nzalez Parties ’ homes would h ave flooded during Harve y even in the hypothetical sce nario in which no water wa s released from Lake Conroe dur ing Harvey (the “ N o Release Scenario ” )

. The Authority supported this argument with the d eclaration of Mark Forest, a hy drology exp ert. T he Autho rity contend s that Forest ’ s modeling shows that even in the N o Release Scenario , t he G onzalez Parties ’ homes would have flooded
anyway

. Th eref

ore , the Authority a rg ues that the Gonzalez Parties ca nnot prove that the Author ity ’ s release of water f rom Lake Conroe was a proximate ca use of any alleged taking or damaging of the Gonzalez Parties ’ prop ert y. The Authority

a ssert s that the tr ia l court err ed in den ying the J ur isdictional Plea as to the Gonzale z Parties ’ takings c laims base d on Forest ’ s undisput ed test imony

. Fo rest testified in h i s declaration as follo ws:

• W ith others w orking under For es t ’ s supervis ion, Fo rest evaluated
r ain fall dat a from th e National Weather Servi ce and mu ltiple o ther
sources , str eamflow data from the United States Geolog i cal Sur vey, the Harris County Flood Contr ol D ist r ict, and t opogra phic data and ba thymetric data fr om multi p le sources, to assess and
mo del the riverine flood

— the f loo d from water that flowed in th rough rivers and other s urface waterways

— that occurred duri n g the H urricane Harvey ev ent from Au gust 26 to August 30, 2 0 17.

• For est and othe rs work ing under his su pervision constructed models of the 20 17 flooding event using the U.S. Arm y Co rps of Engineers software to si mulate the f low behaviors associated wi th t he Wes t Fork San Jacin to and other tributaries as they combine with in Lake H ousto n and discharge from Lake Hous ton into the San Jacinto River do wn st ream of Lake Houst on.

• The Corps of En gineers software they used is considered i n dustry standard for this t ype of a nalysis and ar e soft ware packages that have been rigorously tested and we ll docum ent ed. Th is sof tware is11

also the most comm only used softwar e in th e develop ment of Federal Emergency Management Agency ( “ FEMA ” ) f lood studies , and the s o ftware provide the bas is f or most of the FEMA Fl ood In surance Rate Maps

.

• F orest and others working under h is supervi sion c onstructed a model of the flood as it wo uld have occurr ed ha d no fl oo dwater flowed downstream from Lake C onroe, that is, in the hyp ot hetical and imp ossible sce na rio in which the Lak e Conr oe Dam di d not
re lease a ny floodwater and instead re t ained all inflow into Lake Conroe beh ind the Da m un til some po int after the end of th e Harvey event. This simulat ion is n ot realistic because this scenario presumes an ima gina ry and infi nitely high Lake Conroe Da m

.

• T he technical memora nda attached to Fores t ’ s de clar ation as Exhibits 2, 3, 4 , and 5 were prepare d under Fo rest ’ s d irect ion,
o ver si ght, and supervision. Fo res t rev iewed each of these memorand a , and he agrees w ith and adopt s all analys es a nd conclusions the rein as if they were full y stated in Fores t ’ s declarati on.

• T he re sults presented in Exhibit 5 to Fores t ’ s declaration are sh own to match very well to a range of observat io ns that incl ude United States Geological Su rvey ( “ USGS ” ) gages , U SGS hi gh water marks, and photographic evidence a vailable in the pu b lic domain with regard to flooding extents, wate r surf ace el evations , and ti mi n g associat ed with maximum water le vels and w a ter levels at other times during the ev ent

.

• T he hydrologic a nd h ydra ul ic model of the flood that would have occurred had no floodwat er been release d from Lake Conroe is a purely hypothetical exercise because it would not have been ph ysically pos sible for the Lake Con roe Dam not to release water
as it is current ly const r ucted

. The le vel of Lake Conroe w ould have
reac hed 213.6 fe et ab ove mean sea level , e xceedi ng the top of the dam by about thre e feet. Such over toppin g of Lak e Conroe Dam would have compromised the integ rity of the dam e mb ankment
a nd crea t ed the po tential risk of dam failure due to overto pping

. A dam failure would have been “ far more conse quenti al to the downstream reach compare d to the observed e vent. ” Based on the Forest decl arati on, the Authority argues that release from L ake12

Co n roe could not have caus ed the Gonzalez Parties ’ home to flood. Specifically , the Authority argued:

• 53 homes (77 Plaintiffs) were flood ed by Cypress Creek or Spring Creek alone, beyond the limits of any po tential influence by water from Lake Conroe;

• 3 hom es (3 Plaintiffs ) were w ithin the limits of potential influence from Lake Conroe, but their residences wer e so low they would have flood ed from Cypress Creek no matter what happened at Lake Conroe ; and

• 5 homes (5 Plaintiffs) were flooded entirely by loca l runoff that overwhelme d the storm drains in their own neighborhoods. Finally , the Authority p oints out that the peak rat e of discharge of water from the Lake Conroe Dam in connection with Hur ricane Harvey did not exceed th e peak inflow in to Lake Conroe in conne ction w ith Hurricane Harve y. T he Authority submitted evidence that it retained an outside consultant to create a Gate Operations Policy that was programmed s o t hat the peak outflow from Lake Conro e n ever exceeded 80% of the p eak inflow. Thus, that t he peak inflow into La ke Conroe during Harvey was 129, 065 cubi c feet per second whereas peak outflow was 79,141 cubic feet per second

.
2

. Response by the Gonzalez Parties.
T he Gonzale z Parties resp o nded in oppos ition to the Jurisdict ional Plea and

su bmitted the foll owing e vidence : (1) an unsw orn declara tion in whi ch the decl arant authentica tes six exhibits submitted by the Gonzalez Parties; ( 2) four
press re leases i ssued by the A uthori ty du ring Harve y; ( 3) “ Guide lines for Op eration and Mai ntenance of Dams in Texas , ” issued b y the T exas Co mmission on Environmental Qu alit y ; and (4) a printout fro m the Authority ’ s website entitled

“ Lake Conroe: A Water Supply Re servo ir

. ” The Gonzal ez Part i es did not sub mit

a ny of the followin g: (1) any testimo ny by an ex pert witness; (2 ) any te stimony by13

any of the Go nzal ez Par t ies; ( 3 ) any evidence as to the exten t to which any of the propert ies in question fl oo de d dur ing Har vey; (4) any evidence as to how much any of the p rope rties in question would hav e floode d had no water been rele ase d from Lake Conro e during Harvey; or (5) a ny evidence disput ing Forest ’s statement of the elevation of each property or th e da ta generated by Fore st ’ s m odeling
reg ard ing the propert ies in qu e stion.
Rather than sub mit expert testimony , t he Gonzalez p arties have d o ne two things. First, they argue that the Authority made judicial admissions in its brief

. Second, they rely on o bject ion s they asserte d in the trial court to the F o r est d ec laration and exhibits on a variety of grounds.

(a) I s Exhibit 5 conclusory? T he Gonzalez Parties argue that Exhi bit 5 t o Forest ’ s d eclarat ion is

con clus ory beca use Fo res t does not ex plain in E xhibit 5 how he arri ved at hi s conclusions in this case

. An expert’s s t a t e m e n t or opinion i s conclusory when: (1) the expert a sks the jury to take the expert’s wor d that the expert’s opin ion is correct bu t offers no factu al basis for the opinion or the factu al base s offered do not support the opinion; or (2) th e expert offers only the expert’s w ord that the factual bases offered to support the opinion actually exist or support the opinion. See Windrum v. Kareh , 581 S.W.3d 761, 769 (Tex. 2019). Conclusory tes timony cannot support a judgment even if no obj e ction to the testimon y w as made in the
t rial court

. See id . at 770.

Forest adopted a ll analy s es and conclusions in the 71

- p age Exhibit 5 and inco rporated them in to his declaration. Nonet heless, Forest ’ s dec laratio n containe d 36 paragra phs , enco mpass ing 18 p ages, and the Gonzal e z Parties do not a ssert that any of the statem ents i n these para graphs are conclusor y
. The statemen ts in
p aragr aph s 16 through 33 of the declaration are not conclu sory and explain how14

Forest reached his co nclusion s in this cas e.
I n Ex hib it 5 , Forest desc ri bes h is methodology, the source s of the data he used to validate his modeli ng, and the ways in w hic h he validat ed his modeling

. Forest also provides (1) 62 figures, i ncluding figure s d epictin g t he loc ations of the Gonzal e z P arties ’ hom es ; and (2) a table show ing th e elevation of each of the Gonza les Parties ’ properti es , the ma ximum water surface e levati on on each property shown by Forest ’ s model in g for the actual Harvey event , and the

m a ximum water surface elevatio n on each property sho wn by F orest ’ s mod e ling in the N o Release Scenario

. T he Go nzalez P arties complain that Fores t “ only gives the rea der mos tly incomprehensi ble m aps with no app ar en t r elati onship to the [Gonzalez Parties ’ ] homes, i ncompr e he nsible graphics, insufficient ex planations of metho dolo gy, no ex p l anation of [how] the modeling softwa re works, an d explanat ions of how [Forest] reac hed h is conclu s i on s in a comp lete ly d ifferent

c a se. ” We do not a gree that Fo rest ’ s maps are “ mostl y inco mprehensi ble ” with n o app ar ent relati onship to the Gonzale z Parties ’ homes , nor do we believe that Forest ’ s graphi cs are incompre he nsible

. Fores t ’ s failure t o pr ov id e a deta iled
exp lanati on of how the m o deling sof tware works does not m ake Exhibit 5 conclusor y
. F orest did u se data regarding the fl ooding of a p rope rty invol ve d in another laws uit to validate h is m odeling. Noneth e le ss, Forest explai ned in Exhibit 5 how he r eached his con clu sions in this case , not his conclusions in t he other lawsuit

. I n Exhibi t 5 F orest offers a factual basis f or the opinion s and co nclusions

s tated in the e xhibit, and these fact ual bases support Forest ’ s opinion s and conclusi ons

. T hus, the G onzalez Pa rt ies ’ argument that E xh ibit 5 is conclus ory lacks merit. 3 See Windrum , 5 81 S.W .3d at 769 ; Philli ps Development & Realty,

3 I n Exhibit 7 to Fores t ’ s declar ation , Fores t provides t hree fi gures that pu rport to dep ict the15

LLC v. LJA En gineerin g, I nc
. , 499 S.W.3d 78, 89

– 90 (Tex. App

. — Houst on [14 th Dist.] 2016, pet. denied).

I n its openi ng brief , the Authorit y states th at F orest ’ s report “ does not try to explain to a layperson how hydrology or the Arm y Corps’ software works. ” The Gonzalez P arties a ss ert that this statement constit utes a judicial admission that Exhibit 5 is c onclusory. I n t his sta tement, the Au thor ity does no t addre ss whether Forest offer ed a fa ctual basis for the opinion s or conclusion s stated in Exhibit 5 , or whether any su ch fac t u al bases support Forest ’s opinion s or conclusions

. This statement from the Authority ’ s openi ng brief does not ris e to the level o f a cle ar, deliberat e, and unequ ivocal statemen t that Exhibit 5 is conclu sory , as is required for a judicia l admissio n

. See F ai rf ield Indus., Inc. v. EP Energy E&P Co., L.P. , 531 S.W.3d 234, 244 n.6 (Tex. App.

— Houston [ 14th Dis t.] 2017, pet. denied) (holdi n g that statements in live pleading and other documents did not rise to the lev el of a judicia l admissio n as to the c or rectne ss o f any of the opposing party's

a rgum ents)

. E xhibit 5 is not conclus ory , and the Authority h as not j udicially admi tted that Exhib it 5 is conclusory

.

(b) The G o n z

a l e z P a r t i e s ’ Objections to Form I n t he tr ial court, the Gonzalez Pa rt ies asserted t he follo wing object ions to
t he form of s ome of the evidence submitted b y th e A u tho r it y : ( 1 ) t he ex hibits attached to t he Olmos d ecl aration and the exhibi ts atta ched to the Forest d eclaration ( collectiv ely , the “ Exh ibit s ” ) are hearsay ; ( 2 ) P ar agr aphs 14 an d 19 fro m the Olmos declarati on and Par agraphs 1 6 and 17 fro m the Gilman d ecl a rat ion violate the bes t

- evidence rule ; and ( 3 ) the Authority did not properly authenticate

maximum inundation l imit s in t hr e e sce n arios. The Gonzalez Part ies a ssert that E xhibi t 7 is
co nclusory. We presume, without d eciding, that Exhibit 7 is conclusory and that it is inc o mp etent to prove any issue as to the Jur isdictional Ple a.16

the Exhibits

. On appeal, the Gonzalez Parties asser t that the trial court o verruled the s es obj ections or , in the alte rnative , refused to rule on them. T hough the Gon zalez Pa rties do not a ssert that t he trial court erred in overruling or refus ing to rule on these objections, the Gonzalez Pa rties a s se rt that this court should not

c on sider th e e vidence to which they have ob jected in determin i ng w hether the trial
court er red in d enying the Jur isdict i o nal Plea as to their takings claims. We presume for the sak e of argument that, under a li beral constru c tion of t he Gonzalez Parties ’ b ri ef

ing , they a rgue as an alternative basis for affirming the t rial court ’ s order , that the trial cou rt abused its discretion in over ruling or refusing to rule on these objections, and that if the trial court had s usta ined th ese objec tions, the remaining e vi dence would b e insufficient to support a j u dgment affirming t he t ri al
court ’ s o r der. S ee Berry v. Covarrubias , No. 14

- 03

- 0 1137

- CV, 2004 WL 1631 11 7 ,
a t *7, n.13 (Tex. App.

— Houston [14th Dist.] J ul. 22, 2004, no pet .) (m em. op.).
All of these objections ar e objections to for m , as to which th e Gonzalez Par ties had t o pr es erve e rror in th e trial c ourt. See I n re Longoria , 470 S.W.3d 616 , 630 (Tex. Ap p.

— Housto n [14th Di st.] 2015, orig

. proceeding ) ; Cantu v. Frye & Assoc s., PLLC , No. 01

- 12

- 00868

- CV, 2014 WL 2626439, at *7, *1 0 n.3 (T ex. App.

— Houston [1st Dist.] June 12 , 2014, no pet.) ; Pi co v. Capriccio Italia n Restaurant, Inc. , 209 S.W

. 3d 9 02, 909 (Tex . App.

— Houston [14t h Dist.] 2006, no pet.)

. The record reflects that the trial court did not rule on a ny of the Gonzalez Parti es ’ o bjections t o the Authority ’ s evidence.

T he trial co urt sign ed an order i n which it denied the J urisdiction al Pl ea only as to the takings claim. In this order, t he trial court d id not ru le on any of the Gonzalez Pa rties’ obje ctions. The next d ay, the A utho rity f iled a notice of a p peal, perfecti ng this interlocutory appeal u nder Civil Practi ce and Remedi es Code section 51,014(a)(8), thus t r i g g e r i n g the stay under secti on 51.014(b) o f “ the17

co mmencement of a trial in the trial court [and] a l l o t h e r p r o c e e d i n g s i n t h e t r i a l

c o u r t p e n d i n g r e s o l u t i o n o f [ t h e ] a p p e a l

. ” T e x
. C i v
. P r a c

. & R e m

. C o d e A n n

. § 5 1

. 0 1 4 ( b ) ( W e s t , W e s t l a w t h r o u g h 2021 C

. S.) ; see id

. § 5 1.0 14( a ) (8) ( allowing an appea l from an interlocutory order by a county cou rt at law that grant s or deni es a ple a to the jurisdictio n filed by a governmental unit )

. Two d ays later the G onzalez Parties filed a written reque st aski ng the trial court to ru le on their objections to th e Aut horit y ’ s evide nce and object i ng to the trial court ’ s alleged re fu sal to ru le on the objections

. On the same d ay as th e written request, th e Authority move d to stri ke this motion based on the s tay of all proceedings triggere d by t he Auth ority ’ s ap peal. Unde r the pla in text of se ction 51.014( b) and Supreme Co urt of Texas precedent interpretin g it, the filing of the Authority ’ s not ice of appeal triggered a statutory stay of all p r o c e e d i n g s i n t h e t r i a l c o u r t p e n d i n g r e s o l u t i o n o f the a p p e a l , and there are no exceptions to this st ay. See In re Geomet Recycling, L

. L

. C

. , 578 S.W.3d 82, 86

– 87 ( T ex. 2019). A filing by a party in the trial cour t is a proce eding barred by th is sta y
. See City of Houston v. Swinerton Builders, Inc ., 233 S.W.3d 4, 8

– 9 (Tex. App.

— Houston [1st Dist.] 2007, no pet.). The Authority timely ob jected to the Gonzalez Parties ’ vi olation o f the stay by filing the document containin g the ir objection to the trial court ’ s alleg ed re fu sal to rule on the ir evidentiary

o bjections

. See Roccaf

orte v. Jefferson Cty

. , 341 S.W.3d 919, 923 (Tex. 2011). Therefore , th is document is w ithout force and is ineffective to pr ese rve error on the Gon z a lez Partie s ’ objections to form

. See In re Geomet Recycling, L

. L

. C

. , 578 S.W.3d at 8 6

– 8 7 ; Roccaf orte , 341 S.W.3d at 923 ; Swinerton Builders, Inc ., 233 S.W.3d at 8

– 9

. T he Gonzalez Parti es d id not obtain an adverse ruling on their objections to form , and they did not lodge an effective object ion to an y alleged

re fu sal by the trial cou rt to ru le on the objections to form . Therefore, the Gonzalez Par ties failed to preserve err or in the trial court as to their objections to form. See Tex. R. App. P. 33.1(a )(2); G race Interest, LLC v. Wallis State Bank , 4 31 S.W.3d18

1 1 0, 122 (Tex. App.

— Houston [14th Dist.] 2013, pet. denied) . In any ev ent, the trial court would not have abused its discr etion if i t had ove rrul ed the Gonzalez Parties ’ objections to form. T he Gonzalez Parties ’ o b j ecti ons to the form of the

e vi de nc e do not pro vide an alterna tive basis fo r affirming the trial court ’ s order denying the Juris dictional Plea a s t o the Gonzalez Parties ’ takings clai ms.
3. Did the evidence submitted by the Authority prove that it did not cause the Gonzalez Pa rt ies ’ homes to floo d?
T he evidence submitted b y the A uthority proves as a matter of law t hat each of t he G onzalez P arties ’ homes would have flooded during H arve y even if t he Authority had rele ased no water a t al l from Lake Conroe a nd t h at the Gonz alez Pa rties c annot pr o v e causatio n on their takings c laims

. S ee M is sion Con sol. I ndep. Sch. Dist. v. Garc ia , 372 S.W. 3 d 629, 642

– 4 3 (Tex. 2012 ) ( concl uding that because gove rnmental ent ity submitted undisputed evide nce in su p p o r t o f its plea
to t he j u r i s d i c t i o n negating an e ssen tial element of the plai ntiff ’ s pri ma faci e case, th e plaintiff had the burden to raise a fact ques tion) ; Gu adalupe Count y v. Woodlake Partne rs, Inc

. , No. 04

- 16

- 00253

- CV , 2017 WL 1337650 , at *3

– 4 (Tex. App.

— San Antonio A pr. 12, 2017, p et. denied ) (concludi ng summary judgm ent evid ence n egat ed c ausa ti on eleme nt of the takings c l aim as a matter of law) (me m. op.)

. T hus , to avoid a dism iss al of the ir t akings claims based on govern me nta l immunity , the G on zalez Parties had t he burden to sub mit ev idence disputing the Au thority ’ s evidence a s to caus ati on a nd raising a fact i ssue as t o whether they can prove causation on thei r takings claims. See Garc ia , 372 S.W. 3 d at 642

– 4 3 ; M iranda , 133 S .W.3d at 227

– 28

.
The Gonzalez Parties did not sub mit evide nce dis puting the Au thority ’ s evidence as to caus ation or raisin g a fact issue as t o whether the ir homes would have flooded during H arvey even if t he Authority had r ele ased no water a t al l from19

Lake Conroe

. See Garc ia , 372 S.W. 3 d at 642

– 4 3 ; M iranda , 133 S.W.3d at 227

– 28

. T he evidence relevant to th is jurisdi ctio nal issue is undisputed and fails to rai se a fact que stion on th is jurisdictional issue, so tha t this issue may be ruled on a s a

m atter o f law

. See Garc ia , 372 S.W. 3 d at 64 2

– 4 3 ; Gu adalupe Count

y , 2017 WL 1337650 , at *3

– 4

. Under the applicab le standard of r evie w, we co nclude that the Gonzalez Parties ca nnot prove that the Author ity ’ s release of water from Lake C o nroe wa s a proximate cause of any taking or damaging of the Gonzalez Parties ’ property because the undisputed evidenc e proves a s a ma tter of la w tha t each of these propert ies would have flood ed in the No Release Scen ario

. See Ga rc ia , 372 S.W. 3 d at 64 2

–

4 3 ; Gu adalupe Count

y , 2017 WL 1337650 , a t * 3

– 4

. T hus, we sus tai n the Authority ’ s first issue , and we need n ot and do not address the seco nd or third iss ue.
B
. Did the Gonzalez Parties esta bl ish any basis for waiver of th e Authority’s governmental immunity as to the ir nuisance an d gross negligence clai ms? In its fourth issue, th e Authority asserts that i t has governme nta l immu nity from suit as to the Gonz alez Parties’ nu isance claims and th ei r alleg ed claims for
gross ly n eglige nt maintenance and operation of t he Lake Conroe Dam (t he “Other Claims ”)

. Th e Authority contends that th e Gonzal ez Parties failed to assert any bas is for a waiver of the A uthority ’ s governmental immunit y as to the se cl ai ms. Th e Authority raised th es e point s in the Jurisdictional Plea. Ev en thou gh the trial

c o urt did not rule on t he part of the Jurisdictiona l Plea challenging these t wo clai ms, thi s c ourt s till may address this juris di ctional i s sue

. See Waco Indep. Sch.
D i st. v. Gibson , 22 S.W.3d 849, 850

– 51 (Tex. 2000) ; Texas Dep ’t of Tran sp. v. Esters , 343 S. W.3d 226, 232

– 33 (Tex. App.

— Houston [14th Dist.] 2 011, no pet.); Garcia v. Kubosh , 377 S.W

. 3d 89, 9 3

– 94 (Tex. App.

— Houston [1st Dist.] 2012 , no pet.).20

W hen, as in t he f

our th issue in today ’s c as e , a part y h a s filed a plea to th e juri s diction ch all enging the pleadings , we must cons tru e the pleadings libe rally in fa v or of t he pleader and look t o t he ple ader’s int ent. See M iranda , 1 3 3 S.W. 3d at 226

. A party sui n g a go ve rnmenta l enti ty bears the bur d en of a ffirmatively demonstrat ing the t ria l court ’ s jurisdic tio n by alleg i ng a va l id waiver of immunit y
. Dall a s Area Rapi d Transit v. Whitley , 104 S.W .3 d 540 , 54 2 (T ex. 20 03)

. To de termine if the party has met that bu r de n, w e conside r the fa cts all eged by th e p arty and, to the extent it is rele van t to the jurisdict ional issue, a ny evid e nce submitted by the p arties

. Id

. The Authority is a political subd ivi sion o f the State of Texas that gen er all y is entitled to g overnmental i mm unity. Se e Medina , 627 S.W .3d at 62 2

. Governmental immunit y ha s two c omponents: immunit y f rom liabilit y and immu nit y f rom suit. Se e T ooke v
. City of Mexi a , 197 S.W.3d 325, 332 ( Te x. 2 0 06 )

. When a political subdivision of the state e njoys immunity from s u i t un der the doctrine of gover n mental immuni t y , a court lacks subje ct

- matter jurisdi ction

. See T ex. Dep ’ t

o f Tran sp
. v. Jones , 8 S.W.3 d 63 6, 638 (Tex. 1999)

. Th is case does no t i nv o lve an ult ra vires c laim , a claim i n whi ch a pla int iff
may sue state of

fi c ers in their official capacit y wit h out a s tatutory waiver of immu nit y
. See City o

f El Pa so v. Heinrich , 284 S. W. 3d 36 6, 37 1

– 7 3 (Tex . 20 09)

. E ven if the Gonzalez Parties tried to ass ert a n ul tra vi res cla im a ga in st th e Authority , i t wo u ld be barred by g ov ernment al imm uni ty. See id . at 372

– 73. The Gonzalez Parties d o n o t as sert th at the non

- s ta tutory waiver o f immun ity fro m the Reata ca s e appl i es, and even i f th ey did , the record do es not s u pport a waiv e r of
governmen ta l immuni t y un der the Rea ta cas e

. Se e Reata C onstr uction Corp. v

. C i ty of Dallas , 197 S.W.3d 3 71, 3 73 (Tex

. 2006)

. In this con te x t, for the re to b e a waiver of the Authority ’s go vernmental imm unity a s t o the Other Clai ms , the21

T exas Legislatur e m ust have wa iv e d the Authority ’ s governmental im mu nity by clear and u nambiguou s l anguage in a statute o r legi sla t i ve res olut ion or the Unite d S tates Congress mu st have enacted a stat ute purs u ant t o sectio n 5 of the Fourt eenth Amen d me nt une quivocally expres s in g Cong res s ’ s intent t o waive the Authority ’s
go vernmen t a l immunity as to the Gonzalez Parties ’ claims

. See U.S. Const

. Am e nd. XIV , §5 ; Te x. Civ. Prac. & Rem. C ode An n

. § 10 7. 001, et seq
. (We st, W estlaw t hroug h 2 021 C .S.) ; Tex. Go v ’ t Co d e An n

. § 311

. 034 (W est , West law
t hroug h 2 021 C .S.) ; Jenn ings , 14 2 S.W.3d at 31 5

– 16; Brice v . Tex as Dep ’t of Fam. & Protect ive Servs. , No . 14

- 20

- 00506

- CV, 20 22 WL 131087 6 , at *2 ( Tex. App.

— Houston [14th Dist .] M ay 3, 2022 , no pet.) (mem. op.).
Li b er ally c onstruing the Gonzale z Part ie s ’ live petition, they asse rt both

n ui sance c laims that rise to the le vel of a taking and nuisance clai ms th at do not rise to th e level of a taking

. T he only wa iver of the Author i ty ’s g overnmental im munity a lleged by t he Gonzal ez Parties is t he ta kings pro vision of t he Texa s Constitution, wh ic h waive s governmental immunity for a via ble takings claim

. See Tex. Co nst. art. I, § 17(a) ; El Dorado Land Co., L.P. , 395 S .W.3d at 801

. As to the Other Claims, t he Texas Legislat u re has no t waived the A u thority ’s gove rnmental immunity in secti on 101.021 (1 ) of t h e Civil Practice and Re medies C ode because

“ m otor

- driven equipm ent” does not includ e “ equipment used in c onnection with the operation of floodgates or wat er release equipmen t by rive r authorities created under t he laws of this state

. ” Tex. Civ. Pr ac

. & Rem

. Code An n

. § 10 1

. 001 ( 4 )(A) (We st, W estlaw t hroug h 2 021 C .S.) ; see Tex. Civ. Prac. & Rem. Code An n

. § 10 1

. 0 2 1 ( 1 ) (We st, W estlaw t hrou g h 2 021 C .S.)

. The Te xas Legislat ure has not waiv ed the A u thority ’s government al immunity in secti on 101.021( 2 ) of t he Civi l Practice and Remedies C ode beca use the Other Claims are not c laims for personal i n jury or death. S ee Te x. Civ. Prac. & Rem. Code An n

. § 10 1

. 0 2 1 ( 2 )

.22

In t heir live petition , the Gon zalez Part ies assert that gov ernmental immunity does n ot shield t he Author ity from liab ility for “ inten t ional, non

- negligent nuis ance

a nd g r oss negl igence re l ating to t he imp r o p er maintenance of [the A ut hori ty ’ s] property. ” Th e o nly a uthority that the Gonz alez Parties cite for this pr oposition i s the Supreme Court of Te xa s ’ s opi nion in Miranda

. See Mi randa , 133 S.W.3d at 225. But the M irand

a opinion doe s not s upport th is propositio n

. See id . at 224

– 25. The M iranda case invo lved a poten tial waiver of sovere ign immunity under secti on 10 1.021( 2 ) of t he Civil Practice and R em edies C ode , as modi fied by the recreational u se statute, as to a claim for personal i nju ry

. See Tex. Civ. Prac. & Rem. Code An n

. § § 10 1

. 0 2 1 ( 2 ) , 101.058 ; Miranda , 133 S.W.3d at 2 24

– 25. In th is scenario, the governmental entity ’s sovereign immunity was wai ve d only if it was grossly negli gent. See M iranda , 133 S.W.3d at 2 24

– 25. But, th e Miranda ca se does not state that the Texas Legislative has w aived the immunity of gover nmental entit ie s as to “ inten t ional, non

- negligent nuis ance a nd g r oss negl igence rel ati ng to
t he imp r o p er maintenance o f [the entity ’s ] property. ” See id

. T he Other Claims are
not claims for personal i n jury or death , and thus, th e waiver of immunity in sec ti on 101.021( 2 ) does n ot apply

. S ee Tex. Civ. Prac. & Rem. Code An n

. § 10 1

. 0 2 1 ( 2 )

. T he Te xas Leg islature has not waived the Authority ’s governmental immun ity a s to the Other Clai ms in the Texas Tort C lai ms A c t. See Tex. Civ. Pra c. & Rem. Code An n

. § 10 1

. 0 01 ( 4)(A) ; Tex

. Civ. Pr ac. & Rem. Code An n

. § 10 1

. 0 2 1

. The Gonza lez Parti es have not a ll eged a waiver of the Authority ’s governmental immunity by the United St ates Congress or by t he Texas Legislatur e

. See Dall as Area Rapi d Tran sit , 104 S.W.3 d at 54 2

. Under the appli cable leg al standard, we conclude that go ve r nmental immunity ba rs the Gonz al ez Part ies claims against the Autho rity for gross ly neglige nt maintenan ce and operation of the Lake Conroe Dam a nd for nuisance that does no t allegedly rise to the le vel of a23

takin g. See id .; Jenn ings , 142 S.W.3d at 31 5

– 16

. T he trial court lacks jurisdic ti on

over these cla ims. See Jone s , 8 S.W.3 d at 638

. Bec ause, as discussed above, the Gonzalez P arties cannot prove t heir takings claims and do n ot have viable takings claims, there is no waiver of governmental immunity f or t heir takings cla ims or for
t heir n u i sance c laims that allegedly ri se to the l evel of a taking , and the tr i al court lacks juris diction over these cla i ms

. See Jenn ings , 142 S.W.3 d at 31 5

– 16

. W e sustain th e fourth issue

I II. C ON CLUSI O N Under the applicab l e standard of revie w, we co nclude that the Gonzalez Parties ca nnot prove that the Author ity ’ s release of wate r from Lake Co nroe wa s a proximate cause of any taking or damaging of the Gonzalez Parties ’ property because the undisputed evidenc e proves a s a ma tter of la w that each of these propert ies would have flood ed in the No Release Scen ario

. Under the appli cable leg al standard, we conclude that go ve r nmental immunity ba rs the Other Claims

. Therefore, the trial court erred in denying the Jurisdictional Plea

. The tria l c ourt lacks subject

- matter jurisdiction over the Go nzalez Parties ’ takings claims and the Other C laims

. We rever se the trial co urt ’ s order and r en der judg ment dismissing with prejudice (1) all ta kings claims ass erted by the Gonzalez P arties , ( 2 ) the Go nzalez Pa rties ’ purported claims against the Aut ho rity for gross ly neglige nt maintenanc e and oper at io n of the Lake Conroe Dam ; and (3) all nu isance claims asserted b y the Gonzalez Parties

.

/s/ R a ndy Wils on Just ic e
P ane l cons ists of C hief Ju s ti ce C hristop her and Just ices Z imm ere r and W i l s o n

.