Dennis L. Ambrose v. City of Brownsville, Texas & the City of Brownsville Public Utility Board

• Court: Court of Appeals of Texas
• Decided: September 30, 2015
• Docket: 13-15-00039-CV
• Status: Published

Opinion

ACCEPTED 13-15-00039-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 9/30/2015 1:20:38 PM Dorian E. Ramirez CLERK

NO. 13-15-00039-CV FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 13TH COURT OF APPEALS IN THE 13TH 9/30/2015 1:20:38 PM SITTING IN EDINBURG, TEXAS DORIAN E. RAMIREZ Clerk __________________________________________________________________

DENNIS AMBROSE Appellant

v.

CITY OF BROWNSVILLE, TEXAS AND PUBLIC UTILITIES BOARD OF BROWNSVILLE, TEXAS. Appellees

__________________________________________________________________

APPELLEES’ AMENDED BRIEF APPELLEES'

TREVINO & BODDEN DAVIDSON TROILO REAM & 805 Media Luna, Suite 300 GARZA Brownsville, Texas 78520 A Professional Corporation 956-554-0683 (telephone) 7550 West I.H.-10, Suite 800 956-554-0693 (fax) San Antonio, Texas 78229 E-mail: etrevino@trevinobodden.com 210-349-6484 (telephone) 210-349-0041 (fax) E-mail: lream@dtrglaw.com

By: /s/ /s/ Eddie Eddie Trevino, Trevino, Jr. Eddie Trevino, Jr. By: /s/ Lea A. Ream State Bar No. 20211135 Lea A. Ream State Bar No. 16636750

ATTORNEYS FOR APPELLEE

APPELLEES REQUEST ORAL ARGUMENT IDENTITY OF PARTIES AND COUNSEL

Appellees submit the following list of names and addresses of all parties and counsel pursuant to Tex. R. App. P. 28.1(a):

Appellant : Dennis Ambrose

Appellees : City of Brownsville, Texas and The Public Utilities Board of Brownsville, Texas

Counsel Counsel for forAppellant: Ruben R. Appellant: Ruben R. Pena Pena SBN 15740900 125 Old Alice Road Brownsville, Texas 78520 956-546-5775 (telephone) 956-546-5778 (fax) Riolaw1@aol.com Riolawl@aol.com (email)

Counsel for Appellees: Eddie Trevino, Jr. SBN 20211135 Trevino & Bodden 805 Media Luna, Suite 300 Brownsville, Texas 78520 956-554-0683 (telephone) 956-554-0693 (fax) etrevino@trevinobodden.com etrevino@a,trevinobodden.com (email)

Lea A. Ream SBN 16636750 Davidson Troilo Ream & Garza 7550 West IH 10 Suite 800 San Antonio, Texas 78229 210-349-6484 (telephone) 210-349-0041 (fax) lream@dtrglaw.com (email)

ii TABLE OF CONTENTS

Page

IDENTITYOF PARTIES AND COUNSEL .................................................ii ii

TABLE OF CONTENTS.............................................................................iii CONTENTS iii

INDEX OF AUTHORITIES................................................................iv, AUTHORITIES iv, v, vi

STATEMENT OF THE CASE.....................................................................2 CASE 2

ISSUES PRESENTED ……………………………………………………..2,3 .2,3

STATEMENT STATEMENT OF OF FACTS………………………………...............................3 FACTS 3

SUMMARY SUMMARY OF OF THE THE ARGUMENT……..………….....................................7 ARGUMENT 7

ARGUMENT……………………………………………………………….8,22 ARGUMENT 8,22

1. The 1. The trial trial court’s order granting court's order granting Appellees' Appellees’ Plea Plea to to the the Jurisdiction Jurisdiction should be sustained. 2. The Appellant has waived any and all unasserted bases for jurisdiction.

PRAYER PRAYER ………………………………………………………………………23 23

SERVICE 24 CERTIFICATE OF SERVICE.......................................................................24

CERTIFICATE OF COMPLIANCE 24 COMPLIANCE………………………………………......24

APPENDIX……………………………………………………………………..25 APPENDIX .25

Plaintiff’s Second Amended Plaintiff's Second Amended Original Original Petition Petition

iii INDEX OF AUTHORITIES

CASES PAGE(S)

Bland Indep. Sch. Dist. v. Blue, 34 S.W. 3d 547, 554 (Tex. 2000) ……….8,9 8,9

Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex.App.-Dallas 2010, no pet.) ……………………………………………22 22

City of Canyon v. McBroom, 121 S.W.3d 410 (Tex. App. – Amarillo App. — Amarillo 2003, 2003, no pet. h.) …………………………………… 13 no pet.

City of Dallas v. Blanton, 200 S.W.3d 266, 272 (Tex.App.-Dallas 2006, no pet.) ……………………………………………17,22 17,22

City of Fort Worth v. Crockett, 142 S.W.3d 550, 552 10 (Tex. App. - Fort Worth 2004, pet. denied)…………………………………10 denied)

City of Paris v. Abbott, 360 S.W.3d 567, 582 (Tex. App.—Texarkana 2011, pet. denied) …………………………………16 16

City of San Antonio v. Hardee, 70 S.W. 3d 207, 212 (Tex. App. San Antonio 2001, no pet.) ………………………………………8 8

City City of San Antonio of San Antonio v. v. Summerglen Summerglen Property Property Owners Owners Ass Ass’n 'n Inc., Inc., 185 S.W.3d 74 (Tex. App.-San Antonio, 2005, pet. denied) …………………8 8

City of Weslaco v. Cantu, 2004 WL 210790 (Tex. App. – Corpus App. — CorpusChristi, Christi, 2004, no pet. h.) ……………………………….13 2004, no 13

Concerned Cmty. Involved Dev., Inc. v. City of Houston, th 209 S.W.3d 666, 670 (Tex. App.- Houston [14 [14th Dist.] 2006, 2006, pet. denied) ….18 pet. denied) ....18

Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 540, 542 542 (Tex. 2003) …..13 (Tex. 2003) .....13

Farrell v. Rose, 253 N.Y. 73, 170 N.E. 498, 499 (1930) ……………………20 20

Felts v. Harris County, 915 S.W.2d 482 (Tex. 1996) ………………………….20 20

G.C. & S.F. Ry. v. Fuller, 63 Tex. 467, 470-71 (1885) …………………….....20 20

iv Hardin County Community Supervision and Corrections Department v. Sullivan, 186, (Tex. 106 S.W.3d 186, (Tex. App. App.—– Austin Austin 2003, pet. denied) …………………..13 2003, pet. .13

Hart Bros. v. Dallas County, 279 S.W. 1111, 1111 (Tex. 1926) ……………20 20

In re N.E.B., 251 S.W.3d 211, 212 (Tex.App.-Dallas 2008, no pet.) ………..22 .22

Leatherwood v. Prairie View A&M University, 2004 WL 253275 (Tex. App. – Houston App. — Houston[1st [1stDist.], Dist.], 2004, no pet.) …………………………….13 2004, no 13

L–M–S Inc. L—M—S Blackwell, 149 Tex. 348, 233 S.W.2d 286, 289 (1950) ………20 Inc.v.v.Blackwell, 20

McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex.App.-Dallas 2001, pet. denied) …………………………………………22 22

Smith v. City of League City, 338 S.W.3d 114 (Tex. App.--Houston [14th Dist.] 2011, no pet.) …………………………….18 18

State v. BP Am. Prod. Co., 290 S.W.3d 345, 348 (Tex.App.-Austin 2009, pet. denied) ………………………………………...11 ..11

State v. Holland, 221 S.W.3d 639, 643 (Tex.2007) ………………………….17 17

State v. Walker, 441 S.W.2d 168, 173 (Tex. 1969) …………………………..21 .21

State v. Whataburger, Inc., 60 S.W.3d 256 th (Tex. App—Houston [14[14th Dist.] 2001, pet. denied) ………………………...20 ..20

Suleiman v. Texas Department of Public Transportation, 2010 WL 2431076 (Tex. App.—Houston [1[1stst Dist.] 2010, no pet.)(mem.op.) …………………..21 .21

Tex. Tex. Natural Res. Conserv. Natural Res. Conserv. Comm Comm’n 'n v. v. IT-Davey, IT-Davey, 74 S.W.3d 849, 855 (Tex. 2002) ……………………………………………………………………88

Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) …99

Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004) ……………………………………………………………………9, 10 9, 10

Texas Texas Workers’ Comp. Comm Workers' Comp. Comm’n 'n v. v. Patient Patient Advocates Advocates of of Tex., Tex.,

v 136 S.W.3d 643, 658 (Tex. 2004). ………………………………………….15 15

Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006) …………………9 9

United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1378 (2010)…16 (2010) 16

Univ. of Texas Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) …………………………………………………………………15 15

Withrow v. Schou, 13 S.W.3d 37, 37, 40–41 40-41 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) ……………………..16 .16

CONSTITUTION PAGE(S)

TEX. CONST. art. I, §§ 17 17 …………………………………………………17, 17, 21

TEX. CONST. art. I, § 19 ………………………………………………….5, 5, 14

STATE STATUTES AND RULES PAGE(S)

TEX CIV. PRAC. & REM CODE § 51.014 (a)(4) …………………………16 16

TEX. TEX. GOV’T CODE §§ 2007.002 GOV'T CODE 2007.002 …………………………………………….6,11 6,11

TEX. GOV'T CODE §§ 2007.004(a), .021(b) …………………………………11 11

TEX. GOV'T CODE §§ 2007.021(b), .022(b) ………………………………...11 ..11

TEX. GOV'T CODE § 1502.002 (a) ……………………………………….....19 19

TEX. PROP. CODE § 21.012 ………………………………………………...6, ..6, 12

TEX. PROP. CODE § 21.011 ………………………………………………… 14

TEX. R. APP. P. 38.1 …………………………………………………………22 22

TEX. WATER CODE § 11.035 ……………………………………………….6,22 6,22

42 U.S.C. § 1983 ……………………………………………………………….5,22 5,22

vi NO. 12-15-00039-CV

13TH COURT OF APPEALS IN THE 13TH SITTING IN EDINBURG, TEXAS

__________________________________________________________________

CITY OF BROWNSVILLE, TEXAS AND PUBLIC UTILITIES BOARD OF BROWNSVILLE, TEXAS. Appellees

__________________________________________________________________

APPELLEES' APPELLEES’ BRIEF __________________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

1 STATEMENT OF THE CASE

this case In this case David David Ambrose, Ambrose, Plaintiff Plaintiff in the the Trial Trial Court Court and and Appellant Appellant

herein, filed herein, filed suit suit to enjoin enjoin the use use of of his his property property by by the the City City of ofBrownsville Brownsville

(“City”) and the ("City") the Public Public Utilities Utilities Board Board of of Brownsville (“BPUB”), Defendants Brownsville ("BPUB"), Defendants in

Trial Court the Trial Court and and Appellees Appellees herein, herein, when when resaca resaca restoration restoration operations operations began began

resacas historically which were intended to reduce flooding of resacas historically used by Appellees Appellees

as part as part of of Brownville's Brownville’s water system. system. Defendants/Appellees Defendants/Appellees filed filed aa Plea Plea to the

Jurisdiction claiming claiming Plaintiff/Appellant Plaintiff/Appellant failed failed to to assert assert a valid cause of action for

which their immunity immunity had had been been waived. Appellant made efforts to state a cause of waived. Appellant

action by amending his petition twice to state a claim for which Appellees were not

governmentally immune. Following aa hearing, immune. Following hearing, the the Honorable Honorable Janet Leal presiding

over over the 103rd Judicial the 103rd Judicial District District Court Court of of Cameron Cameron County, County, Texas Texas granted granted

Appellees’ Plea Appellees' Plea to to the the Jurisdiction. Jurisdiction. In Inthis thisAppeal, Appeal, Appellant Appellant has has only only contested contested

the Trial the Trial Court's Court’s decision decision in in granting granting the the Plea Plea to to the the Jurisdiction Jurisdiction based based on on two two

causes causes of action: inverse of action: inverse condemnation condemnation and pursuant pursuant to the the provisions provisions of the

Texas Private Real Property Rights Preservation Act.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

ISSUE ONE:

order granting Court’s order The Trial Court's granting Appellees' Appellees’ Plea Plea to to the the Jurisdiction Jurisdiction should should

be sustained.

PCD#239050 2 A. Standard of Review.

B. Appellant failed to plead a waiver of sovereign immunity.

C. Appellant’s claim C. Appellant's claim under the Texas under the Texas Private Private Real Real Property Property Rights Rights

Preservation Act is statutorily barred.

Appellant’s reliance on the D. Appellant's the Texas Texas Property Property Code Code is is misplaced—It misplaced—It does

not provide not provide a private private cause cause of of action action ororwaiver waiverofofgovernmental governmental

immunity.

Appellant’s procedural E. Appellant's procedural Due Process Rights, Due Process implicated, have been Rights, if implicated, been satisfied.

Appellant failed F. Appellant failed to allege aavalid to allege validinverse inversecondemnation condemnation claim, claim,

governmental immunity governmental immunityapplies, applies,and andthe thegranting grantingofofthe the plea plea to the to the

jurisdiction should be sustained.

ISSUE TWO:

Appellant has waived any and all other bases for jurisdiction.

STATEMENT OF FACTS

The City of The of Brownsville, Brownsville, Texas is is aa municipality municipality incorporated incorporated under under the

laws of the the State State of of Texas. (2nd SCR 4) The Texas. (2nd ThePublic Public Utilities Utilities Board Board of of Brownsville Brownsville

water and electric is the water electric utility utility of of the the City City of of Brownsville. is managed Brownsville. It is managed by a

Board of Board of Directors Directorsappointed appointedbybythe theCity CityofofBrownsville. Brownsville.(CR (CR4)4) Both Both are are

political subdivisions under the the laws laws of of the the State State of of Texas. (2nd SCR 4) Texas. (2nd

PCD#239050 3 connection with In connection governmental function with its governmental function of providing water of providing water to to the

citizens citizens of Brownsville, Appellees of Brownsville, have utilized Appelleeshave utilized the the city’s unique network city's unique network of of

resacas to use and store water and collect runoff from storms, and thereby help to

prevent flooding prevent flooding of of the the city. Asaaresult city. (CR 21-22) As resultof ofsediment, sediment, trash trash and and other

debris building up in the resacas, Appellees began an effort to clean, maintain and

restore the resacas restore resacas by implementing implementing the the Resaca Resaca Restoration RestorationProject. Project. (CR 21-22)

involved a cleaning and dredging The Project involved dredging process which allowed debris that

collected in had collected in the the resacas resacas to to be be removed. Appellees instituted removed. (CR 21-22) Appellees instituted this

project to accomplish project accomplish a number number of tasks but the principal principal reasons reasons were to create create

additional water capacity capacity and and help help prevent prevent flooding. flooding. (CR 21-22)

Dennis Ambrose Dennis Ambrose (hereinafter (hereinafter“Plaintiff” "Plaintiff' or “Appellant”) was or "Appellant") was aware aware of

Appellees’ plans to clean Appellees' clean and and maintain maintain the the resacas resacas through through aa dredging dredging process. process.

(CR 8-10) (CR 8-10) On OnMarch March18, 18,2013, 2013,Appellant, Appellant, through through his his counsel, counsel, sent letters letters to

Appellees objecting objecting to to the the Resaca Resaca Restoration Restoration Project Project planned plannedby byAppellees. Appellees. (CR

8-10)

On November 4, On November 2013 Appellant 4, 2013 Appellant filed suit and filed suit and obtained obtained an ex parte parte

Temporary Restraining Temporary RestrainingOrder. Order. (CR (CR 4, 4, 31) 31) InInhis hisOriginal OriginalPetition Petition Appellant Appellant

alleged that alleged on or that on or about about October October 2013, 2013, Appellees Appellees trespassed trespassed on on Appellant's Appellant’s

property by placing equipment on his property and dredging his resaca without his

consent. (CR (CR 5) 5) Appellant Appellantalleged allegedthat thatthe thetrespass trespass included included the the unlawful unlawful entry on

his property by employees employees of of Appellees Appelleesand andplacing placingequipment. equipment. (CR (CR 5) 5) Appellant PCD#239050 4 alleged that alleged these acts constituted that these constituted aa trespass trespass and and that these acts were carried out

willfully, maliciously, willfully, maliciously,and andoppressively oppressivelyresulting in in resulting damages. damages.(CR (CR5)5) The The

purported trespass purported trespass is on “the is on "the water water portion” portion" of of Appellant’s Appellant's property. (Appellant’s property. (Appellant's

Brief 9-10) Brief 9-10) Appellant Appellant claimed claimed that that these these alleged alleged events events caused caused him to suffer suffer

mental anguish mental anguish and prayed prayed for for unspecified unspecified damages, damages, exemplary exemplary damages damages and and

attorneys’ fees in addition to injunctive attorneys' injunctive relief. relief. (CR 5)

After receiving After receiving notice notice of of Appellant’s claims, Appellees answered and filed a Appellant's claims,

plea to the jurisdiction. After aa hearing, jurisdiction. After denied Appellant’s hearing, the Trial Court denied request Appellant's request

for temporary injunctive injunctive relief. Appellant did relief. (CR 31) Appellant did not not appeal appeal this decision.

Appellant amended After Appellant amended his his petition, petition, (CR Appellees filed their First (CR 31), Appellees

Amended Plea Amended Plea to Jurisdiction asserting to the Jurisdiction asserting that that Appellant’s Appellant's cause cause of of action for

trespass is barred by sovereign or governmental immunity; Appellant had failed to

plead a basis for a waiver of immunity; and Appellant had failed to provide timely

notice of claim. claim. (CR 15-18).

Appellant filed Appellant Second Amended filed his Second Amended Original Original Petition Petition on December December 10,

2014 in which he again asserted a cause of action for trespass, but did not allege allege

any factual basis for a waiver waiver of Appellees’ sovereign of Appellees' sovereign immunity immunity for his his trespass trespass

allegation. (CR allegation. 26-29)1. Appellant (CR 26-29)1. Appellant included included new new allegations allegations in paragraph paragraph 2.4 of

Petition that his Second Amended Petition that Defendants Defendants violated violated “his rights under "his rights under the the Texas Texas

Constitution Article 1, Section 19, in violation of title 42 USC section 1983, and in

1 See Appendix attached hereto. PCD#239050 5 violation of his rights violation rights under under the the Texas Texas Private Private Real Real Property Property Rights Rights Preservation Preservation

Plaintiff would Act. Plaintiff would further further show show that that the the actions actions of of these these Defendants Defendants violated his

rights under rights under 11.035 11.035 of of the the Texas Texas Water Water Code, Code, providing providingthat.” that."[sic]. [sic]. (CR 27)

Appellant later Appellant later makes makes aa passing passing allegation allegation in Paragraph 3.1 in Paragraph 3.1 of his Second of his Second

Amended Petition Amended Petition that Appellees failed that Appellees failed to properly condemn condemn Plaintiff's property Plaintiff’s property

and violated Sections 21.012 through through 21.016 21.016 of of the the Texas Texas Property PropertyCode. Code. (CR 28)

The basis The basis that that Appellant Appellant alleged alleged supports supports aa waiver waiver ofofgovernmental governmental

immunity is immunity Chapter 2007.002 is Chapter 2007.002 of Texas Government of the Texas Government Code, Code, 11.035 11.035 of the of the

Texas Water Water Code Code and and aa passing passing reference referencetotoaagovernmental governmentaltaking. taking.(CR (CR28) 28) In

Appellant’s four Appellant's four page page pleading, pleading, he does not set forth any facts to support any cause

of action other than than the the original original cause cause of of action action that that he he asserted assertedfor for trespass. trespass. (CR

Ofsignificance 27-28) Of significance to to this this appeal, appeal, Appellant Appellant did not plead plead any facts to support

the required elements elements of of a taking claim, including taking claim, including the the most most fundamental fundamental of those

elements-- that some property property of of Appellant Appellant was was taken taken by by Appellees. Appellees. (CR 27-28)

Appellees filed their Second Amended Plea to the Jurisdiction on December

16, 2014 16, 2014 asserting asserting that that the the court court lacked lacked jurisdiction jurisdiction to to hear hear Appellant's Appellant’s claims claims

because Appellant's because Appellant’s pleadings pleadings fail fail to to allege allege or or attempt attempt to to establish establish a basis to waive

sovereign immunity on on the the part part of of Appellees. (2nd SCR 4) Appellees. (211"

Following aa hearing, Following hearing, the Trial Court the Trial Court granted granted Appellees’ Appellees' Plea Plea to the to the

Jurisdiction by its order order on on December December 29, 29, 2014. 2014. (CR 30)

PCD#239050 6 SUMMARY OF THE ARGUMENT

This suit This suit arises arises out out of of the the Appellees' Appellees’ efforts efforts to to clean clean and and maintain maintain the the

resacas in resacas Brownsville to in Brownsville allow the resacas to allow resacas to hold hold more more water, water, protecting protecting its

residents against residents against flooding. Appellant opposed flooding. Appellant opposed this project and began by writing writing

letters expressing letters expressing his his objection. When the objection. When theletters letters were wereunsuccessful, unsuccessful, Appellant Appellant

filed suit for trespass and obtained an ex parte temporary temporary restraining restraining order. order. After

receiving notice of receiving notice Appellant’s petition, of Appellant's petition, Appellees Appellees opposed opposed the injunctive injunctive relief

sought by sought Appellant and by Appellant and the Trial Court the Trial Court refused refused to enter aa temporary to enter temporary or or

preliminary injunction. preliminary Appellees contested injunction. Appellees contested the Trial Court's the Trial Court’s jurisdiction jurisdiction over over

Appellant’s suit Appellant's suit because because Appellant failed to plead jurisdictional jurisdictional facts facts or a cause of

action that would provide provide the the Trial Trial Court Court with with jurisdiction. Appellant now claims jurisdiction. Appellant

suit is that his suit is premised premised on inverse inverse condemnation, condemnation, but but yet yet he failed in the Trial he failed Trial

Court to identify anything taken from him by Appellees, much less a compensable

taking—a fundamental taking—a fundamentalprerequisite prerequisitetotoany anyclaim claim for for inverse inverse condemnation. condemnation. In

reality, Appellant’s reality, complaint remains as it began-- an action for trespass which is Appellant's complaint

barred by the Texas Tort Claims Act.

In seeming seeming recognition recognition that that the Trial Court the Trial Court lacks lacks jurisdiction jurisdiction over over his his

trespass cause trespass cause of action, action, Appellant Appellant dropped dropped his trespass claims his trespass claims in his his appellate appellate

“sounding briefing but has instead tried to disguise his claims by labelling them as "sounding

in inverse condemnation.” In the condemnation." In the end, end, Appellant Appellant was was unable unable to articulate articulate a cause

of action for inverse condemnation condemnation in the Trial Court and still has not articulated, articulated, PCD#239050 7 and cannot articulate, articulate, a basis basis for for jurisdiction. Given the absence of a pleading that jurisdiction. Given

justifies Appellees' justifies Appellees’ immunity immunity being being waived, waived, the the Trial Trial Court lacked jurisdiction and

correctly granted Appellees’ correctly granted Appellees' Plea Plea to the Jurisdiction, to the Jurisdiction, which which this Court Court should should

uphold.

ARGUMENT

I. The trial court's The trial court’s order order granting granting Appellees' Appellees’ Plea Plea to to the the Jurisdiction Jurisdiction should be sustained.

A. Standard of Review

The granting The granting or or denial denial of of aa Trial Trial Court’s ruling on Court's ruling on aa plea plea to to the the jurisdiction jurisdiction is is

reviewed by the appellate court under a de novo standard of review. Tex. Natural

Res. Conserv. Res. Conserv. Comm Comm’n 'n v. v. IT-Davey, IT-Davey, 74 S.W.3d S.W.3d 849, 849, 855 855 (Tex. (Tex. 2002). 2002). To resolve

any jurisdictional issues, this Court can consider the pleadings and other relevant

evidence. City of San Antonio v. Summerglen Summerglen Property Owners Ass’n Property Owners Inc., 185 Ass'n Inc.,

S.W.3d 74 (Tex. App.--San Antonio, 2005, pet. denied); Bland Indep. Sch. Dist.

v. Blue, 34 S.W. 3d 547, 554 (Tex. (Tex. 2000). 2000). In In cases cases in in which which the only issue on the

plea to plea to the the jurisdiction jurisdiction involves involves the the individual individual property property owners’ owners' standing standing to to bring

their claims, their claims, the court may the court may not not consider consider the the merits merits of of the the underlying underlying suit. suit.

Summerglen, 185 S.W.3d at 83; City of San Antonio v. Hardee, 70 S.W. 3d 207,

212 (Tex. App.--San Antonio 2001, no pet.).

PCD#239050 8 Appellant Failed B. Appellant Failed To Plead A Waiver Of Sovereign Immunity

A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat

a cause of action without regard to whether the asserted claims have merit. Bland

Indep. School Indep. School Dist. Blue, 34 S.W.3d Dist. v. Blue, S.W.3d 547, 547, 554 (Tex. 2000). 554 (Tex. 2000). AAgovernmental governmental

unit’s sovereign unit's sovereign immunity immunity deprives deprives a trial trial court court of of subject subject matter matter jurisdiction. jurisdiction.

Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).

Governmental Governmental immunity, immunity, aa derivation derivation of sovereign sovereign immunity, immunity, shields shields political political

subdivisions of subdivisions of the State from suit and the State and liability. liability. Tooke Tooke v. Mexia, 197 v. City of Mexia,

S.W.3d 325, 332 (Tex. 2006). Because immunity 2006). Because immunity from suit deprives a trial court of

jurisdiction, aa governmental jurisdiction, governmental entity entityproperly properlyasserts assertsimmunity immunityininaa plea plea to the to the

jurisdiction. Miranda, 133 S.W.3d at 133 S.W.3d at 225-26. The plaintiff 225-26. The plaintiff bears bears the burden burden of

alleging facts alleging affirmatively proving facts affirmatively provingthat that the the trial court has trial court has subject subject matter matter

jurisdiction. Texas Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.

While the 2001). While the claims claims may may form form the the context context in in which which the the dilatory dilatory plea is raised,

the plea should be decided without delving into the merits of the case. Bland, 34

S.W.3d at 554.

Appellant must Appellant must have have alleged alleged sufficient sufficient facts facts to to invoke invoke the Trial Court's the Trial Court’s

jurisdiction which jurisdiction which Appellant Appellant acknowledged acknowledged in in his Brief, “In his Brief, "In aa challenge challenge solely solely to to

the pleadings, as here, this Honorable Court must decide if the plaintiff has alleged

sufficient jurisdictional sufficient jurisdictional facts facts to to show the trial show the trial court's court’s subject-matter subject-matter jurisdiction, jurisdiction, PCD#239050 9 using a liberal using liberal construction construction inin favor favor of of the the plaintiff.” (Appellant’s Brief plaintiff." (Appellant's Brief at at 11, 11,

citing Miranda, 133 S.W.3d at 226.)

Curiously, later in his Brief, Appellant seems to have confused the pleading

responsibilities of the responsibilities the respective respective parties parties in in this this litigation. litigation. In his Brief, he criticizes

Appellees for Appellees for not pleading that not pleading Appellant’s property that Appellant's property was was not damaged by not damaged the by the

resaca project. resaca (Appellant’s Brief project. (Appellant's Brief at at 17). 17). While WhileAppellees Appellees contest contest that that Appellant Appellant

sustained any sustained any damage damage to his property, property, Appellees Appellees had had no no obligation obligation to to file such a

pleading, or pleading, or make make such such an an allegation. Appellees were allegation. Appellees were the defendants defendants in the suit

responding to responding to the allegations allegations of of Appellant/Plaintiff. Appellant had alleged that Appellant/Plaintiff. If Appellant

significantly, if he had he suffered some damage, or more significantly, had alleged alleged that that Appellees Appellees

had taken his property, property, Appellees Appellees would have responded. would have responded. A A review review of of Appellant’s Appellant's

Second Second Amended Amended Petition Petition makes makes abundantly abundantlyclear clear that that he he did did not not make such an

Rather, Appellant allegation. Rather, Appellant failed failed to to meet meet his his obligations obligations to plead facts sufficient

to invoke to invoke the the Court’s jurisdiction which Court's jurisdiction which he he acknowledged acknowledged was required of him.

Governmental Governmentalentities, entities,like like Appellees, Appellees,are are immune immune from from suit unless the suit unless

Texas Legislature Texas Legislature has has expressly expressly consented consentedtoto suit and thereby suit and thereby waived waived the the

governmental entity’s governmental immunity. City of Fort Worth v. Crockett, 142 S.W.3d 550, entity's immunity.

552 (Tex. App. -- Fort Worth 2004, pet. denied). Absent consent to suit, the trial

court lacks jurisdiction. jurisdiction. Id. The Appellant Appellant in this proceeding proceeding failed failed to meet the

standard for waiver of immunity.

PCD#239050 10 Appellant’s Claim C. Appellant's Claim Under Under The Texas Private The Texas Private Real Real Property Property Rights Rights Preservation Act Is Statutorily Barred.

Appellant alleges Appellant alleges the the Appellees Appellees violated violated his his rights rights under under the Texas the the Texas

Private Private Real Real Property Property Rights Rights Preservation Preservation Act Act (“the Act"), which ("the Act”), which can can be found in be found in

Texas Government Code 2007.002 et. seq. (CR 27-28) citing to Texas Government

Code 2007.002 2007.002 as authority authority that Appellees' immunity from Appellees’ immunity from suit suit has has been been waived. waived.

While this provision provision does does in fact waive immunity immunity from from suit in some instances, it

does not does not here. here. Appellant Appellant has hasnot notmet metthe thespecific specificstatutory statutory requirements requirements for for

jurisdiction under jurisdiction under this this statutory statutory scheme. Any proceeding scheme. Any proceeding under under the Act must be

filed filed with with its appropriate tribunal its appropriate tribunal ‘not 'not later later than than the 180th day the 180th day after after the the date date the the

private real property private property owner owner knew knew or should should have have known known that that the the governmental governmental

restricted or action restricted or limited limited the the owner's owner's right right in in the the private private real real property.’” property.'" State v.

BP Am. Prod. Co., 290 S.W.3d 345, 348 (Tex. (Tex. App.--Austin App.--Austin 2009, pet. denied) denied)

(quoting TEX. GOV'T. (quoting TEX. GOV'T. CODE CODE §§ §§ 2007.021(b), .022(b)). The 2007.021(b), .022(b)). The Legislature Legislature only only

waived immunity immunity from from suit suit to the extent provided for in the Act; Act; the the requirement requirement

that suit that suit against against aa political political subdivision subdivision be be timely timely filed filed in district court in district court is

jurisdictional. Id. §§ 2007.004(a), .021(b); BP Am. Prod. Co., 290 S.W.3d at 367

(holding timely (holding timely filing filing in proper district court court is is aa jurisdictional jurisdictional requirement requirement for

suing a political subdivision pursuant to the Act).

Appellant filed Appellant Second Amended filed his Second Amended Original Original Petition Petition on December December 10,

2014, in 2014, in which which he he first first alleged allegedhis hiscause causeofofaction actionunder underthe theAct. Act. (CR (CR27) His 27) His

PCD#239050 11 Second Second Amended Amended Original Original Petition Petition isis complaining complaining of of actions actions and events that and events that

occurred occurred on or about September September 2013, 2013, which which conservatively conservatively isis 436 436 days days from the

date in which date which Appellant Appellant brought broughtforth forthhis his claims claimspursuant pursuanttotothe theAct. Act. (CR 27)

Therefore, taking Therefore, Appellant's allegations taking Appellant’s allegations as as true true as to his claim under the Act and

has not the date of filing his claim, he has not met met the the jurisdictional jurisdictional requirements for suit,

and any and all claims under the Act are barred.

D. Appellant’s Reliance on the Texas Property Code is Misplaced—It Does Appellant's Provide a Private Not Provide Private Cause Cause Of Of Action Action or or Waiver Waiver of ofGovernmental Governmental Immunity.

Appellant in his Second in his Second Amended Amended Original Original Petition Petition provides provides for for aa "kitchen “kitchen

sink” approach sink" approach to pleading, attempting to pleading, attempting to to “throw "throw in” many state in" many state and and federal federal

statutes that statutes that relate relate to to condemnation. Appellant cites to Chapter condemnation. Appellant Chapter 21 of the the Texas Texas

Property Property Code Code which which relates relates solely solely to to aa governmental governmental entity’s ability to entity's ability to exercise exercise

eminent eminent domain domain authority, authority,and anddoes doesnot not provide providefor for aa private private right right or cause of or cause

action, and therefore action, therefore is insufficient insufficient in in providing providing subject subject matter matter jurisdiction. jurisdiction. (CR

28)

Section 21.012 of the Texas Property Code provides the statutory authority

and procedural and procedural guidelines guidelines for for entities entities that thatpossess possess“eminent "eminentdomain domainauthority.” authority." “If "If

an entity with eminent domain authority wants wants to acquire real property for public

use but use but is is unable unable to to agree agree with with the the owner owner of of the the property property on the the amount amount of

damages, the entity may begin a condemnation damages, condemnation proceeding proceeding by by filing filing a petition in

the proper the proper court.” Tex. Prop. court." Tex. Prop. Code § 21.012. There There is is no no private private right or cause of PCD#239050 12 action under Chapter 21 of the Texas Property Code that provides an individual the

authority to institute suit to force force condemnation condemnation proceedings. proceedings. Appellant lacks such

authority and lacks standing to file suit based upon these statutes.

When bringing When bringing suit against a governmental suit against governmental entity, entity, the plaintiff has the plaintiff the has the

burden to affirmatively plead a valid waiver of immunity from suit in order to vest

the trial court with jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d

540 (Tex. (Tex. 2003). Although the 2003). Although the allegations allegations in the Appellant's pleadings are Appellant’s pleadings to be are to be

liberally construed, construed, the Appellant’s live pleading Appellant's live pleading must demonstrate, not only from

the facts alleged, but also from references to statutes or other provisions of law,

that the that the defendant's defendant’s governmental governmental immunity immunity from from suit has been waived. waived. City City of

Weslaco v. Cantu, 2004 WL 210790 210790 (Tex. (Tex. App. – Corpus App. — Corpus Christi, Christi, 2004, 2004, no pet.);

Leatherwood v. Prairie View Leatherwood View A&M A&M University, University, 2004 WL WL 253275 253275 (Tex. (Tex.App. App.—–

[1st Dist.], 2004, no pet.); City of Canyon v. McBroom, Houston [1st McBroom, 121 S.W.3d 410

(Tex. App. – Amarillo App. — Amarillo 2003, 2003, no no pet.); Hardin County Community Supervision and

Corrections Corrections Department Department v. Sullivan, 106 S.W.3d 186, 186, (Tex. (Tex. App. App.—– Austin 2003,

pet. denied). In In the the present present case, case, Appellant's pleadings fail Appellant’s pleadings fail to to provide provide a sufficient sufficient

statutory or other legal statutory legal provision provision which which affirmatively affirmatively establishes establishes any any waiver waiver of

immunity from Appellees’ immunity Appellees' from suit. suit.

PCD#239050 13 E. Appellant’s Procedural Appellant's Procedural Due Due Process Rights, If Process Rights, If Implicated, Implicated, Have Have Been Been

Satisfied.

Appellant further contends that, by failing to follow the procedures set forth

in Chapter 21 of the Texas Property Code, Appellees have violated his Procedural

Due Process Due Process rights rights under under Article Article I, Section 19 I, Section 19 of of the theTexas TexasConstitution. Constitution.

(Appellant's Brief at 13-15) (Appellant’s Brief 13–15) The The Texas Constitution provides that “[n]o Texas Constitution "[n]o citizen citizen of of

this State shall be deprived of life, liberty, property, privileges or immunities, or in

any manner any manner disfranchised, disfranchised, except except by by the the due due course courseof ofthe thelaw lawof ofthe theland.” TEX. land." TEX.

CONST. CONST. Art. Art. I,I, §§ 19. 19. Chapter Chapter 21 21 of ofthe theTexas TexasProperty Property Code Code sets sets forth forth the the

procedural safeguards procedural safeguardsthe the government governmentmust mustfollow followin in exercise exercise its powers of its powers

eminent domain. Tex. Tex. Prop. Prop. Code Code § 21.011(2015).

Here, however, Here, however, Appellees Appellees never never sought sought to condemn or to condemn take Appellant's or take Appellant’s

property. Rather, property. Rather, the the City City was wasmerely merely cleaning cleaning and and restoring restoring the the resacas. resacas.

Accordingly, Appellees Accordingly, Appellees had had no no reason reason or obligation obligation to follow the procedures procedures set

forth in Chapter 21 of the Texas Texas Property Property Code. Code. Tex. Prop. Code § 21.011, et. seq.

Turning to Article I, § 19 of the the Texas Texas Constitution, Constitution, Appellant has failed to

satisfy his burden of first satisfy first identifying identifying aa property property interest interest warranting warranting Due Process Process

protection. AADue Due Process Process inquiry inquiry requires requires aa two-part two-part analysis: analysis: (1) the Court must

determine whether determine whether Appellant Appellant has has aa liberty liberty or property interest or property interest that that is entitled entitled to

PCD#239050 14 procedural due procedural due process process protection; protection;and and (2) (2) ifif so, what process so, what process is due. Univ. Univ. of

Texas Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995).

In Appellant's In Appellant’s Second Second Amended Amended Petition, Petition, he he did did not not identify identify the the deprivation deprivation

of property property he sought to vindicate. he sought vindicate. His Hisargument argument before before this this Court Court consists consists

entirely entirely of describing the of describing procedures established the procedures establishedby by Chapter Chapter 21 21 of Texas of the Texas

Property Property Code Code for the exercise for the exercise of of eminent eminent domain domain by bygovernment government entities. entities.

(Appellant's Brief at 13-15) (Appellant’s Brief 13–15) He Hepresumes presumesthat thatAppellees Appellees were were obligated obligated to initiate

condemnation condemnation proceedings proceedings under under Chapter Chapter21. However, Chapter 21 only governs 21. However,

eminent domain procedures eminent domain procedures when the government when the government takes takes private private property. property.

Appellees have Appellees have not not taken taken Appellant’s property and Appellant's property and Appellant Appellant has failed to has failed identify to identify

compensable taking. a compensable Accordingly, Appellant taking. Accordingly, Appellant has not identified has not identified aa property property

interest, the interest, the first two prong first of the two prong test, test, that that is is worthy worthy of of procedural procedural due due process process

protection and his reliance on Chapter 21 is misplaced.

Even the Court Even if the Court found found that thatprocedural procedural due due process process safeguards safeguards were were

triggered, Due triggered, Due Process Process would would be satisfied. Though be satisfied. Though textually textually different, different, Texas Texas

courts generally construe the due course of law provision in the same manner as its

federal counterpart, the Due Process Clause. Texas federal counterpart, Texas Workers’ Comp. Comm'n Workers' Comp. Comm’n v. v.

Patient Advocates Patient Advocates of Tex., 136 136 S.W.3d S.W.3d 643, 643, 658 658 (Tex. (Tex. 2004). Under the 2004). Under the Due Due

Process Process Clause, Clause, technical technicalnotice noticeisis not not and has never and has never been been the the standard standard for for

determining whether determining whetherdue dueprocess processhas hasbeen beenafforded affordedtotoaa litigant. “Rather, due litigant. "Rather, due

process only requires notice, reasonably calculated under the circumstances, to be PCD#239050 15 given.” Withrow v. Schou, 13 S.W.3d 37, 40–41 given." (Tex. App.—Houston [14th Dist.] 40-41 (Tex.

1999, pet. denied) 1999, denied) (citing (citing Peralta Peralta v. Heights Med. v. Heights Med. Ctr., Inc., Inc., 485 485 U.S. U.S. 80, 82 82

Actual notice (1988)). Actual (1988)). notice "more “more than than satisfies" satisfies” due due process process rights. rights. United Student

Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1378 (2010).

Here, by Here, by his his own own admission, admission, Appellant Appellant had had actual actual notice notice of the Appellees' of the Appellees’

Resaca Restoration Restoration Project Project months months before before itit commenced. commenced. Appellant states that, on

or about March 18, 2013, he had his attorney attorney write to Appellees, Appellees, objecting to the

operation, operation, which which letters letters were were attached attachedtotohis hispetition. (Appellant's Brief petition. (Appellant’s Brief at 9; CR

Appellant then 8-10). Appellant then sought sought and obtained an ex parte temporary temporary injunction. injunction. After

and aa hearing, notice to the City and the Trial hearing, the Trial Court Court subsequently subsequently denied denied Appellant's Appellant’s

request for aa preliminary request preliminary injunction injunction refusing refusing to enjoin enjoin the the Resaca Resaca Restoration Restoration

Project. Project. (Appellant's Brief at (Appellant’s Brief Denialofofa apreliminary at 9) Denial preliminary injunction injunction can can be be

immediately appealed. immediately appealed. Tex. Civ. Prac. & Rem. Code Code § 51.014(a)(4). 51.014(a)(4). Appellant Appellant

Trial Court's did not appeal the Trial refusal of Court’s refusal of the the preliminary preliminary injunction injunction and and cannot cannot

now complain that he has not been afforded due process. City of Paris v. Abbott,

360 S.W.3d 567, 582 (Tex. (Tex. App.—Texarkana App.—Texarkana 2011, pet. denied) (concluding that

plaintiff who failed to avail himself of the procedures for appeal and opportunity to

be heard be heard on on the the matters matters at at issue issue "cannot “cannot now now assert assert aaprocedural procedural due due process process

takings claim”). takings claim").

In short, In short, Appellant's Appellant’s procedural procedural due process claim fails for the same reason

takings claim that his takings claim fails—he fails—he has has suffered suffered no no compensable compensableharm. harm. Even Even if his PCD#239050 16 property rights property rights had had been been at issue, Appellant's at issue, Appellant’s actual actual notice notice of Appellees’ actions of Appellees' actions

preclude an preclude an argument argument that that Appellant’s Appellant's due process rights were violated.

F. Appellant F. AppellantFailed FailedToToAllege AllegeA A Valid Valid InverseCondemnation Inverse Condemnation Claim, Claim, Governmental Immunity Governmental Immunity Applies, Applies,And And The The Granting Granting Of Of The The Plea To The Jurisdiction Should Be Sustained.

Appellant's pleadings fail Appellant’s pleadings allege aa valid fail to allege validinverse inverse condemnation condemnation claim. claim.

Article I, section Article section 17 17 of of the theTexas TexasConstitution guarantees that Constitution guarantees that "no “no person's person's

shall be taken, property shall taken, damaged, damaged, or destroyed for or destroyed for or applied to public or applied public use use

without adequatecompensation without adequate compensationbeing beingmade....” made...."TEX. TEX.CONST. CONST.art. art.I,I, §§ 17 17

(emphasis added). (emphasis A takings added). A takings cause cause of of action action consists consists of of three three essential essential elements: elements:

(1) an intentional act by the government under its lawful authority (2) resulting in a

taking of the taking the Appellant's Appellant's property property (3) for public public use. use. State v. Holland, Holland, 221

S.W.3d 639, 643 (Tex.2007).

valid inverse When an Appellant does not allege a valid inverse condemnation condemnation claim,

as in in this this case, case, governmental governmental immunity immunity applies, applies, and court should and the trial court should

grant a plea to the jurisdiction. City of Dallas v. Blanton, 200 S.W.3d 266, 272

(Tex.App.--Dallas 2006, 2006, no no pet.). In this pet.). In this case case Appellant Appellant completely failed to plead

an inverse condemnation condemnation claim. His four claim. His four page page Second Second Amended Amended Petition Petition makes makes

only a cursory reference to a claim for inverse condemnation. He only mentioned a

claim condemnation once claim for inverse condemnation once in the petition—by petition—by name in substance, name or in substance,

when he stated when “The conduct stated "The conduct of of defendants defendants set set out out above above constitute constitute an an inverse inverse

condemnation condemnation without without just just and and fair fair compensation.” (CR 28) compensation." (CR PCD#239050 17 To assert aa constitutional constitutional claim for inverse inverse condemnation condemnation a plaintiff must

first and foremost foremost allege allege that that his his or or her her property property was was taken taken by by the the government. government. In

this case, Appellant made no allegation or even suggestion that his property was

taken by Appellees. taken Appellees. Nowhere Nowhere in in his hisSecond SecondAmended Amended Petition Petition does does Appellant Appellant

identify any identify property taken any property taken from from him Appellees, which him by Appellees, which is essential and is an essential and

fundamental fundamentalelement elementofofany any cause cause of of action action for inverse condemnation. for inverse “A condemnation. "A

necessary element necessary element of an inverse condemnation condemnation claim claim is that private property was

taken for taken for aa public public use.” use." Smith v. City of League City, 338 S.W.3d 114 (Tex. App.--

Houston [14th Dist.] 2011, 2011, no no pet.). “To prove pet.). "To prove standing, standing, aa party party must must demonstrate demonstrate

that he that he 'possesses ‘possesses an an interest interest in in aa conflict conflict distinct distinct from from that that of of the the general general public, public,

such that that defendant's defendant's actions havecaused actionshave causedthe theplaintiff plaintiffsome someparticular particularinjury.’” injury.'

Smith v. City of League Smith League City, City, 338 S.W.3d 114, 124 124 (Tex. (Tex. App.—Houston [14th App.—Houston [14th

Dist.] 2014, Dist.] 2014, no nopetition)(quoting petition)(quoting Williams Williams v. Lara, 52 v. Lara, S.W.3d 171, 52 S.W.3d 171, 178 178

(Tex.2001)). “Alandowner (Tex.2001)). "A landowner suffers suffers no no compensable compensable injury injury where where the the government government

physically appropriated, has not physically appropriated, denied denied access to, or otherwise otherwise directly directly restricted restricted

the use the use of of the the landowner's landowner's property." property.” Id. (citing Concerned Cmty. Involved Dev., Dev.,

Inc. v. City Inc. City of of Houston, Houston, 209 S.W.3d S.W.3d 666, 666, 670 670 (Tex.App.-Houston (Tex.App.-Houston [14th Dist.] Dist.]

“Standing is 2006, pet. Denied)). "Standing is aa question question of of law law we we determine determine de de novo.” Id. novo." Id.

In this case, Appellees were cleaning and maintaining the resacas to increase

storage capacity water storage capacity and prevent prevent flooding flooding in accordance accordance with with the provision provision of

which permits state law which municipality to permits a municipality to "improve, “improve, enlarge, enlarge, equip, equip, operate, operate, or or PCD#239050 18 maintain any maintain any property, property, including including… ... resacas...” Texas Gov't resacas..." Texas Gov’t Code Code §§ 1502.002 1502.002 (a).

Appellees’ actions likelihood Appellees' In all likelihood actions benefited benefited Appellant's Appellant’s property property by helping to

prevent flooding, along the resaca by removing trash, debris and excess sediment,

The fact not hurt him. The fact that that his his property property was was not not taken taken but but benefited benefited by by Appellees’ Appellees'

actions would actions would explain explain Appellant’s Appellant'sfailure failuretoto articulate articulateaa taking taking claim claim in his in his

petition.

The only The only complaint complaint articulated articulated in in his his petition petition was was that that Appellees’ had come Appellees' had come

upon the water portion of the resaca as part of their cleaning and dredging process.

(Appellant’s Brief (Appellant's Brief 9-10) These allegations 9-10) These formed the allegations formed the basis basis of of Appellant's Appellant’s

governmental immunity and which Appellant trespass claim which was barred by governmental

has not raised has raised in in this appeal.22 this appeal. But, even But, even giving giving Appellant Appellant great great latitude latitude in

assuming that assuming that his his alleged alleged taking taking claim claim is based upon is based Appellees’ access upon Appellees' access to to his

portion of portion the resaca, of the resaca, such such a claim claim would would not not support support aa claim claim for for inverse inverse

condemnation. Effectively, such condemnation. Effectively, suchaa claim claim would would seem seemto to be be for some type for some type of

transitory or passing entry on or through the resaca as part of the dredging process.

Such Such a claim, even if itit had had been been articulated articulated by by Appellant, Appellant, would not support support a

claim for inverse claim for inverse condemnation condemnation because becausesuch suchalleged allegedharm harmisis viewed viewed as as a

community community loss loss and and is is not not a compensable compensable taking. The Texas taking. The Texas Supreme Supreme Court has

“concluded that "concluded injuries to that injuries property received to property received or sustained sustained in common common with with the

2 2Claims for trespass are barred by the Texas Tort Claims Act. Harris County v. Cypress Forest Pub. Util. Dist., 50 S.W.3d 551, 554 (Tex.App.-Houston [14th Dist.] 2001, no pet.). PCD#239050 19 community in which the property is situated, and resulting from the operation of a

public work, public work, are community community in nature. Community in nature. Community damages damages are are not not connected connected

with the with the landowner's landowner's use use and enjoyment ofof property and enjoyment propertyand andgive give rise rise to no to no

compensation.” compensation." Felts v. Harris County, 915 S.W.2d 482 (Tex. 1996)(citing G.C.

& S.F. Ry. v. Fuller, 63 Tex. 467, 470–71 470-71 (1885)).

State v. Whataburger, In State Whataburger, Inc., 60 S.W.3d S.W.3d 256 256 (Tex. (Tex. App—Houston [14th App—Houston [14th

Dist.] 2001, pet. denied), the Court of Appeals explained:

The Texas The Texas Constitution Constitution provides provides that that nono person's person's property property “shall be "shall be taken, taken, damaged damaged or or destroyed destroyed for or applied for or applied to to public public use without use without adequate adequate compensation compensationbeing beingmade.” made." Tex. Const. art. I, §§ 17. 17. Translating Translatingthisthisconcept concept into into aaworkable workable scheme scheme that produces that produces aa "just, “just, fair, fair, and and full full compensation compensation has has often often engrossed engrossed the the best best thought thought of of the the courts.” courts." Hart Bros. v. Dallas County, 279 279 S.W. S.W. 1111, 1111, 1111 1111 (Tex.1926). (Tex.1926). BecauseBecause all enhancements, enhancements, whetherwhether public public or private, are rarely or private, rarely achieved achieved without some without some inconvenience, inconvenience, not all "damages" not all “damages” are are compensable. compensable. Increased Increased access access to property often to property enhances its often enhances value; the inconvenience value; inconvenience and temporary temporary impairment impairment which which a property owner property owner suffers improvements are suffers when street improvements are made made is simply an simply an incident incident ofof city city life life and and must must be be endured. “The law endured. "The law gives him gives him no right right to to relief, relief, recognizing recognizing that that he recoups recoups his damage in the benefit which he shares with the general damage general public in the in the ultimate ultimate improvement improvement which which is being made." is being made.” L—M—S L–M–S Blackwell, 149 Tex. 348, 233 S.W.2d Inc. v. Blackwell, S.W.2d 286, 289 (1950)(1950) (quoting Farrell (quoting Farrell v. Rose, Rose, 253253 N.Y. N.Y. 73,73, 170 170 N.E. N.E. 498, 498, 499 499 (1930)). Thus, Thus, aa property property owner owner may may notnot generally generally recover for increased traffic increased traffic noise, noise, dust, diversion of dust, diversion traffic, circuity of traffic, circuity of travel, reduced travel, reduced visibility visibility byby the public, public, etc. Felts Felts v. Harris Harris County, 915 S.W.2d 482, 485 (Tex.1996); State v. Schmidt, 867 S.W.2d 769, 774 (Tex.1994).

that Appellant The fact that Appellant has not not suffered suffered any any compensable compensable taking taking is

further exemplified further exemplifiedby byhis his allegations allegationsfor fordamages. damages. The The only only form form of PCD#239050 20 damages he damages has articulated he has articulated in his petition in his petition are for alleged are for alleged "mental “mental anguish." anguish.”

(CR 27) (CR 27) Mental Mentalanguish anguish damages damages are are not not recoverable recoverable in action for in an action for

condemnation condemnation or inverse condemnation. condemnation. State v. Walker, 441 S.W.2d 168,

1969).33 173 (Tex. 1969).

Finally, in his Second Amended Petition Appellant states that the acts of the

Appellees were Appellees were “illegal "illegaland andunlawful unlawfulaction.” action." (CR (CR 27-29) By stating 27-29) By stating that the the

actions of the Appellees were outside the bounds of any legal authority, Appellant

has plead has plead allegations allegations that that are are contrary contrarytoto aa cause cause of of action action for for inverse inverse

condemnation. Taking the condemnation. Taking the Appellant's pleadings as Appellant’s pleadings as true, true, and and the illegal acts of the

Appellees were unlawful unlawful and outside outside the bounds of any legal authority, then their

actions cannot actions cannot constitute constitute inverse inverse condemnation. Therefore, despite not properly condemnation. Therefore, properly

alleging a claim under Article I, Section alleging Section 17 of of the the Texas Texas Constitution, Constitution, Appellant Appellant

plead that has failed to plead that the the Appellees were acting Appellees were acting within within their their "lawful “lawful authority" authority”

and instead plead that Appellees Appellees were were acting acting outside outside their their legal legal authority. authority. Because

Appellant failed Appellant failed to properly plead to properly cause of plead a cause of action action for forinverse inversecondemnation condemnation

governmental immunity governmental immunity applies, applies, and and the Appellees’ the Trial Court properly granted Appellees'

3 3 The causes The causes of of action action and and damages damages sought sought byby the the landowner landowner in Suleiman Suleiman v. Texas Texas Department of Public Transportation are very similar to those sought by Appellant in this Transportation, 2010 WL 2431076 (Tex. case. Suleiman v. Texas Department of Public Transportation, st App.—Houston [1st[1 Dist.] 2010, no pet.)(mem.op.). pet.)(mem.op.). Suleiman Suleiman alleged alleged claims claims for inverse condemnation and condemnation and for for trespass trespass based based inin part part on on TXDOT’s removal of TXDOT's removal of dirt, dirt, excavation excavation on on Appellant’s property Appellant's property and and emotional emotional distress, distress, among among other other claimed claimed damages. damages. Id. at *7-10. *740. The The court court of of appeals appeals affirmed affirmed the the trial trial court’s award of court's award of a plea to the jurisdiction on these claims and damages. Id. at *10.

PCD#239050 21 Plea to the Jurisdiction Jurisdiction and this Court should affirm its decision. decision. City of Dallas, Dallas,

200 S.W.3d at 272.

II. The II. TheAppellant AppellantHas HasWaived Waived Any Any And And All AllUnasserted Unasserted Bases Bases For For Jurisdiction.

Court, aa party's To present an issue to this Court, party's brief brief shall shall contain, contain, among among other

non-argumentative statement things, a concise, non-argumentative statement of of the the facts of the case, supported

by record references, and a clear clear and and concise concise argument argument for the the contentions contentions made

with appropriate with appropriate citations citationstoto authorities authoritiesand andthe therecord. TEX. R. APP. P. 38.1; record. TEX. 38.1;

McIntyre v. Wilson, McIntyre Wilson, 50 S.W.3d S.W.3d 674, 674, 682 682 (Tex.App.--Dallas (Tex.App.--Dallas 2001, pet. denied). denied).

Existing Existing legal legal authority authority applicable applicable to to the the facts facts and and the questions questions we we are asked to

address must be accurately cited and analyzed. Bolling v. Farmers Branch Indep.

S.W.3d 893, Sch. Dist., 315 S.W.3d 893, 896 896 (Tex.App.--Dallas (Tex.App.--Dallas2010, 2010,no nopet.). pet.). When a party

fails adequately brief fails to adequately brief a complaint, complaint, he waives the he waives the issue issue on on appeal. appeal. In re In re

N.E.B.,251 S.W.3d 211, 212 (Tex.App.-Dallas 2008, no pet.).

Appellant asserted Appellant asserted claims, claims, in in the Trial Court, under 42 USC Section Section 1983,

Texas Water Code Section 11.035, and a common law cause of action for trespass.

(CR 27-28) Appellant Appellant has has not not asserted asserted on on appeal appeal that that jurisdiction jurisdiction may be granted

pursuant to these claims, pursuant claims, and thus any appeal for jurisdiction jurisdiction on on the basis of said

claims is waived in total. Id.

PCD#239050 22 CONCLUSION

On the face On the face of of Appellant's Appellant’s pleadings pleadings Appellant Appellant failed failed to to allege allege or or attempt attempt to to

establish establish any any waiver waiver of governmental governmental immunity immunityon on the part of the the part the Appellees, Appellees,

asserted claims under statutory authority authority that that does does not not provide provide for for a valid cause of

action and failed to properly plead jurisdictional facts that would support a cause of

action under action under inverse inverse condemnation. Appellant properly condemnation. Appellant properly framed framed the the issue issue to to be

decided by decided by this this Court Court in in his his Brief, Brief, namely, namely, "whether “whether plaintiff plaintiff has has alleged alleged sufficient sufficient

jurisdictional facts jurisdictional factstoto show show the the trial trial court’s subject-matter jurisdiction.” court's subject-matter jurisdiction." It is It is

abundantly clear that Appellant has failed to allege sufficient facts to establish the

court’s jurisdiction. Consequently, court's jurisdiction. Consequently,Appellant's Appellant’sclaims claimsare arejurisdictionally jurisdictionally barred barred

and the trial court's order granting court’s order granting Appellees' Appellees’ Amended Amended Plea Plea to to the the Jurisdiction Jurisdiction

should be affirmed.

PRAYER

WHEREFORE PREMISESCONSIDERED, WHEREFORE PREMISES CONSIDERED,Appellees, Appellees,the theCity City of

Brownsville, Texas and Public Utilities Board of Brownsville, Texas, respectfully Brownsville,

affirm the request that the Court affirm the Trial Trial Court’s Court's granting of the Brownsville’s Brownsville's Plea to

the Jurisdiction. the Jurisdiction. The The City City ofofBrownsville Brownsville and and Public Public Utilities Utilities Board Board of

Brownsville, Texas Brownsville, Texas further further respectfully respectfullyrequest requestthat that costs costs be taxed against be taxed against

Appellant, Dennis Ambrose, Appellant, Dennis Ambrose, and and for all other relief to which City of of Brownsville Brownsville

and Public Utilities Board of Brownsville, Texas may be entitled.

PCD#239050 23 CERTIFICATE OF SERVICE

and correct I hereby certify that a true and correct copy copy of the the foregoing foregoing document document has been forwarded via electronic mail on this the 30th day of September, 2015 to:

Ruben R. Pena 125 Old Alice Road Brownsville, Texas 78520 956-546-5778 (fax) Riolaw1@aol.com Riolawl@aol.com

/s/ Eddie Trevino, Jr. Eddie Trevino, Jr.

/s/ Lea A. Ream Lea A. Ream

CERTIFICATE OF COMPLIANCE

certify that this I certify this document document was was produced produced on aa computer computer using using Microsoft Microsoft Word Word 2010 and contains 2010 contains 5,130 5,130 words, determined by words, as determined the computer by the computer software's software’s 19 word-count function, word-count function, including including the the sections sections of of the document document listed listed in Texas Rule of Appellate Procedure 9.4(i)(1).

Lea A. Ream Lea A. Ream

PCD#239050 24 APPENDIX

Plaintiff’s Second Amended Plaintiff's Second Amended Original Original Petition Petition

PCD#239050 25 FILED 2013-DCL-07168 12/10/2014 4:45:29 PM Aurora De La Garza Cameron County District Clerk By Teodula Garza Deputy Clerk CAUSE NO.2013-DCL-7168-D 3447792

DENNIS L. AMBROSE, IN THE 103rd JUDICIAL Plaintiff v. DISTRICT COURT OF

CITY OF BROWNSVILLE, TEXAS & THE CITY OF BROWNSVILLE PUBLIC UTILITY BOARD, CAMERON COUNTY, TEXAS Defendants

PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, DENNIS L. AMBROSE, hereinafter referred to as Plaintiff, complaining of the CITY OF BROWNSVILLE, TEXAS and the CITY OF BROWNSVILLE PUBLIC UTILITY BOARD (PUB) , hereinafter called by name or as defendants, and for such cause of action, would respectfully show unto the Court and jury as follows: I. PARTIES 1.1 Plaintiff, DENNIS L. AMBROSE , is a resident of Cameron County, Texas. 1.2 Defendant, the BROWNSVILLE PUBLIC UTILITY BOARD, is a semi autonomous board of the City of Brownsville, with its own board of directors and its own manager. 1.3 The Defendant BROWNSVILLE PUBLIC UTILITY BOARD has appeared herein and filed an answer. 1.4 The CITY OF BROWNSVILLE, TEXAS has appeared herein and filed an answer. 1.5 Venue is proper in Cameron County, Texas in that the incidents the basis of this cause of action occurred in Cameron County, Texas, and the property subject of this suit is located in Cameron County, Texas. Pursuant to Tex. Civil Practice & Remedies Code §15.011 venue is mandatory in Cameron County, Texas. II. FACTUAL ALLEGATIONS 2,.1 The injuries and damages suffered by the plaintiff and made the basis of this action

26 arose out of a series of occurrences which occurred on or about September 2013 and continues through the present. 2.2 Plaintiff is the owner of real property where he resides and which is located adjacent to Dean Porter Park, more particularly described as follows: Lot Seven (7) and the Southeast Six feet (6') of Lost Six (6) in a resubdivision of Lots One (1) and Two (2), Block Three (3), LOS EBANOS ADDITION, a Subdivision in the City of Brownsville, Cameron County, Texas, according to the Map of record in Volume 12, page 31, Map Records of Cameron County, Texas.

2.3 On or about March 18, 2013, long before the incidents giving rise to these claims, Plaintiff by and through his attorney advised the PUB, and the City of Brownsville and its legal counsel that he opposed any dredging on his property, which includes the resaca. Plaintiff was made aware through newspaper publications that the city and PUB were planning on dredging resacas throughout Brownsville, Texas. Having previously been invaded by the Defendants against his will and consent, Plaintiff sought to preempt the illegal and unlawful taking of his property. In spite of his protests the Defendants nevertheless, undertook the illegal and unlawful action. 2.4 The actions by the Defendants violated his rights under the Texas constitution article I, Section 19, in violation of title 42 USC section 1983, and in violation of his rights under the Texas Private Real Property Rights Preservation Act. Plaintiff would further show that the actions by these Defendants violated his rights under §11.035 of the Texas Water Code, providing that 2.5 In spite of such request to cease and desist the Defendants in violation of Plaintiffs property rights, have trespassed by placing equipment on his property, dredging his resaca without his consent. The dredging has caused Plaintiff a great deal of mental anguish. 2.6 This has not been the first time the Defendants have entered onto Plaintiffs property without permission and without securing an easement for the purposes of dredging the said resaca. The Defendants have a history of trespassing on plaintiffs property without obtaining permission or any legal right to do so. On at least two prior occasions Defendants have trespassed on Plaintiff's property. The trespass includes the unlawful entry on his

27 property by employees of the Defendants and placing equipment , i.e. a tanker truck and two pickup trucks on Plaintiffs property in September of 2013 without regard to the ownership of Plaintiff and without regard that Plaintiff has sought injunctive relief. This constitute a willful, wonton and malicious action on the part of the Defendants.

III. 3.1 Defendants have failed to properly condemn plaintiffs property and have as a result violated section 21.012 through 21.016 of the Texas Property Code. Under Chapter 2007.002 et. seq. of the Texas Government Code immunity has been waived as to suit and liability in regards to a governmental taking. The City of Brownsville, Texas and the Public Utility Board have admitted they are "political subdivisions" under the laws of the State of Texas. As such governmental immunity is not applicable to governmental taking. Under Texas Water Code § 11.035 immunity has also been waived as to suit and liability. 3.2 Plaintiff has complied with all conditions precedent. IV. DAMAGES 4.1 The conduct of defendants set out above constitute an inverse condemnation without just and fair compensation. Plaintiff is hereby entitled to recover actual damages. V JURY DEMAND 5.1 Plaintiff has previously requested a jury trial and reasserts his demand for a trial by jury.

Prayer for Relief WHEREFORE PREMISES CONSIDERED, plaintiff prays that this Honorable Court grant the following: 1. Judgment against the Defendants for Plaintiffs damages; 2 A permanent injunction be issued, on final trial of this cause, enjoining defendant, its agents, servants, and employees, directly or indirectly from trespassing onto Plaintiffs property; 3. Court costs

28 4. Attorneys fees; 5. Prejudgment interest as allowed by law; 6. Interest on said judgment at the legal rate from date of judgment 7. Such other and further relief to which plaintiff may be justly entitled

Respectfully submitted,

LAW OFFICES OF RUBEN R. PERA, P.C. 125 Old Alice Rd Brownsville, Texas 78520 Tele: 956-546-5775 Fax: 956-546-5778

BY:IslRuben R. Pena RUBEN R. PESTA State Bar No. 15740900 Cameron County I.D. No. 285801

ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing Second Amended Original Petition has been forward to the attorneys for the Defendants on this the 10TH day of December, 2014.

VIA FACSIMILE• 210-349-0041

WILLIAM A. FAULK, III Davidson Troilo Ream & Garza 7550 West 1F1-10, Suite 800 San Antonio, Texas 78229

VIA FACSIMILE: 956-554-0693

Eddie Trevino, Jr. TREVINO & BODDEN 805 Media Luna, Bldg 300 Brownsville, Texas 78520

/s/ Ruben R. Pena

Ruben R. Pena