Jimmy and Cheryl Williams v. Guadalupe-Blanco River Authority and Its Officers and Directors

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-20-00445-CV

Jimmy and Cheryl WILLIAMS, et al., Appellants

v.

GUADALUPE-BLANCO RIVER AUTHORITY and its Officers and Directors, et al., Appellees

From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 19-2054-CV Honorable Stephen B. Ables, Judge Presiding

Opinion by: Lori I. Valenzuela, Justice

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Lori I. Valenzuela, Justice

Delivered and Filed: July 7, 2021

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

This appeal comes before this court after the trial court’s partial denial and partial grant of

appellee’s plea to the jurisdiction based on standing and sovereign immunity. The trial court

partially denied the plea (as to appellants’ constitutional and statutory takings claims) and partially

granted the plea (dismissing all other claims). Because appellants lack standing on the record

before us, we reverse the trial court’s judgment on appellants’ takings claims, affirm the trial

court’s dismissal of all other claims, and remand for further proceedings consistent with this

opinion. 04-20-00445-CV

BACKGROUND

In 1933, the Texas Legislature created the Guadalupe-Blanco River Authority (“GBRA”)

to “develop, conserve and protect the water of the Guadalupe and Blanco Rivers.” Act of October

12, 1933, 43rd Leg., 1st C.S., Ch. 75, 1933 General and Special Laws of Texas 198, as amended

(Vernon’s Ann. Tex. Civ. Stat. art. 8280-106). Between 1928 and 1932, six hydroelectric dams

(“hydro dams”) were privately constructed and put in service in the Guadalupe River Valley in

Comal, Guadalupe, and Gonzales Counties. Construction of the hydro dams resulted in the

formation of six lakes: Meadow Lake and Lakes Placid, McQueeney, Dunlap, Wood, and

Gonzales. In 1963, GBRA acquired the six hydro dams.

The six hydro dams collectively contain a total of fifteen spill gates. On March 15, 2016,

one of the spill gates at the Lake Wood dam failed. The failure resulted in the sudden discharge of

water and the draining of Lake Wood, which has remained empty. On May 14, 2019, one of the

spill gates at the Lake Dunlap dam likewise failed. The second failure resulted in the draining of

Lake Dunlap to the original river channel.

As a result of these failures, GBRA announced its intent to perform a “systematic

drawdown” of the remaining four lakes, beginning at Lake Gonzales and then moving upstream to

Meadow Lake, Lake Placid, and Lake McQueeney. According to GBRA, this was necessary

because the hydro dams were past their useful lives and the failure of the remaining four dams was

imminent. Appellants—owners of properties adjacent to the lakes—sued GBRA (and its officers

in their official capacities) for injunctive relief to prevent the announced drawdown, declaratory

relief, and damages. 1 According to appellants, Guadalupe County Appraisal District assessments

1 For brevity, GBRA refers to both GBRA and its officers and directors in their official capacities.

-2- 04-20-00445-CV

reflect diminishment of adjacent property values between 28% and 35% due to GBRA’s

announcement.

On August 20, 2020, the trial court heard GBRA’s plea to the jurisdiction. The trial court

(1) denied GBRA’s plea as to appellants’ claims for takings under the Texas Constitution

(constitutional taking) and Chapter 2007 of the Texas Government Code (statutory taking) and

(2) granted GBRA’s plea as to all other claims, dismissing them with prejudice. All parties

appealed.

STANDARD OF REVIEW

To establish subject matter jurisdiction, a plaintiff must allege facts that affirmatively

demonstrate the court’s jurisdiction to hear the claim. Town of Shady Shores v. Swanson, 590

S.W.3d 544, 550 (Tex. 2019). A plaintiff also bears the burden of establishing a waiver of

sovereign immunity in suits against the government. Id. A party may contest a trial court’s subject

matter jurisdiction by filing a plea to the jurisdiction. Houston Belt & Terminal Ry. Co. v. City of

Houston, 487 S.W.3d 154, 160 (Tex. 2016). We review a trial court’s ruling on a plea to the

jurisdiction under a de novo standard of review. Id. at 160; County of Bexar v. Steward, 139 S.W.3d

354, 357 (Tex. App.—San Antonio 2004, no pet.).

Our de novo review looks to the pleader’s intent and construes the pleadings in its favor.

Houston Belt, 487 S.W.3d at 160. But where a defendant presents evidence to challenge the

existence of jurisdictional facts, as here, we are “not required to look solely to the pleadings but

may consider evidence and must do so when necessary to resolve the jurisdictional issues raised.”

Shady Shores, 590 S.W.3d at 550 (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555

(Tex. 2000)). That is the case even when “jurisdiction and the merits intertwine.” Id. (quoting

Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 783 (Tex. 2018)). When a plea to the

jurisdiction challenges the existence of jurisdictional facts with supporting evidence, as here, the

-3- 04-20-00445-CV

standard of review mirrors that of a traditional summary judgment: all the evidence is reviewed in

the light most favorable to the plaintiff to determine whether a genuine issue of material fact exists.

Id. (citing Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004)).

STANDING

Standing requires a plaintiff to establish: (1) the plaintiff’s claimed injury is “both concrete

and particularized and actual and imminent, not conjectural or hypothetical”; (2) the injury is

“fairly traceable to the defendant’s challenged action”; and (3) “it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.” Data Foundry, Inc. v. City

of Austin, 620 S.W.3d 692, 700 (Tex. 2021). GBRA challenges the existence of the first element—

a particularized injury.

“Generally, a citizen lacks standing to bring a lawsuit challenging the lawfulness of

governmental acts.” Andrade v. NAACP of Austin, 345 S.W.3d 1, 7 (Tex. 2011). Unless standing

is conferred by statute, a plaintiff must demonstrate possession of an interest in a conflict distinct

from the general public, such that the defendant’s actions have caused the plaintiff some particular

injury. Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001).

GBRA asserts appellants lack standing because they cannot demonstrate a particularized

injury. “An injury is ‘particularized’ for standing purposes if it ‘affect[s] the plaintiff in a personal

and individual way.’” Data Foundry, 620 S.W.3d at 696. The primary standing issue here is

whether GBRA’s decisions regarding operations of the hydro dams resulted in particularized

injuries to appellants. Four binding authorities bear on this issue.

Applicable Law

In San Antonio Conservation Society v. San Antonio, the court held that riverfront

landowners challenging the construction of a bridge lacked standing. 250 S.W.2d 259, 263–64

-4- 04-20-00445-CV

(Tex. Civ. App. 1952, writ ref’d). 2 The landowners argued they enjoyed rights beyond those held

by the general public; specifically, the right to avoid traffic congestion resulting from construction

of the bridge and the right to have their view kept open. Id. at 264. The court held these conditions

are not specific to the landowners; rather, they are suffered by the public. Id. With respect to traffic,

the nature of the wrong, injury, or damage—not their extent—controls. Id. Because any member

of the public using the roads would be affected by increased traffic, the injury is not particularized

to the landowners. Id. The court further stated:

The same reasoning applies to other so-called special injuries of which appellants complain, such as the right to view the unmarred beauty of the river and to saunter along its banks. Proximity to the river and parks along its banks does not determine the character of appellants’ interests as being justiciable or not. The interests which they seek to protect are the same whether they are used or enjoyed must [sic] or little or none. The only interests which appellants alleged in the river and parks is the right of enjoyment. This interest is common to all the people of San Antonio, those who avail themselves of the privilege as well as to those who do not or cannot.

Id. Lacking a particularized injury, the riverfront landowners lacked standing to challenge the

bridge’s construction.

In City of West Lake Hills v. State ex rel. City of Austin, thirteen individual homeowners

alleged that a “buffer zone” created by the City of West Lake Hills’s annexation of the area

surrounding the homeowners acted as a “noose” that diminished the value of their property. 466

S.W.2d 722, 726 (Tex. 1971). According to the homeowners, their property diminished in value

because, as a result of the noose, they could not be annexed by Austin (and receive Austin city

services). Id. at 727. The Court rejected the homeowners’ standing, stating that private parties

“must suffer some burden peculiar to [themselves] to acquire standing to sue,” and that “no action

2 “Cases where an application for writ of error was filed after 1927 bearing the notation ‘refused’ ‘carr[y] the imprimatur of Texas Supreme Court precedent.’” Data Foundry, 620 S.W.3d at 698 n.3.

-5- 04-20-00445-CV

lies by the individual to restrain an interference with the public interest.” Id. Because the City of

West Lake Hills “imposed no burden upon these property owners by taxation or otherwise,” the

Court determined that the homeowners lacked standing. Id. That is, the homeowners lacked

standing because the City of West Lake Hills’s annexation of adjoining areas did not constitute a

sufficiently particularized injury to the encircled homeowners.

In Texas Dept. of Transp. v. City of Sunset Valley, a landowner alleged that floodlights

installed on a new highway shone so brightly on his property that they “destroy[ed] its rural

character” and created a “spot light effect.” 146 S.W.3d 637, 647 (Tex. 2004). The floodlights

were constructed on land owned by the State, not the landowner. Id. at 645. The Court explained:

[N]ot every deleterious impact on private property amounts to a compensable taking. Instead, property impacts resulting from the construction of public works are compensable only to the extent they are not common to the community at large. Here, Cowan testified that the lights shine “into [his] neighborhood and [his] neighbors’ property,” and his pleadings also suggest that the lights similarly affect others in the community. While the proximity of Cowan’s property to Highway 290 may increase the degree of the lights’ impact on his property in comparison to its impact on other properties in the area, that fact alone does not suffice to render his injuries constitutionally compensable.

Id. at 647–48.

In Harrell v. Lynch, the Court rejected plaintiffs’ standing in a lawsuit seeking to invalidate

the movement of a county seat from the city of their residence to another city. 65 Tex. 146, 149–

50 (1885). Notwithstanding a reduction in property values, because the plaintiffs maintained no

property right in the location of the county seat, its movement to another city cannot confer

standing on plaintiffs. Id. at 152.

Analysis

Appellants complain about aesthetic and recreational losses, but these complaints—

suffered by the public at large—are barred by San Antonio Conservation Society. 250 S.W.2d at

-6- 04-20-00445-CV

263–64. Additionally, appellants do not plead that GBRA’s decisions resulted in a physical

invasion of their lake-adjacent properties, such as by water flooding their properties because of

GBRA’s decision to open spill gates. To the contrary, appellants seek relief from diminished

market values of their lake-adjacent properties because of water incidentally receding from the

edge of their properties due to GBRA’s decisions concerning the operation of the hydro dams.

These facts are analogous to the facts in West Lake Hills, Sunset Valley, and Harrell.

West Lake Hills forecloses standing premised on diminishment of appellants’ property

values due to actions directly affecting only GBRA’s property (i.e., the hydro dams, lands

underlying the lakes, and water rights). 466 S.W.2d at 727. Sunset Valley clarifies that even

deleterious impacts on adjoining properties are only compensable to the extent they do not affect

the “community at large”—that is, appellants are required to show an injury particular to them

apart from the community at large. 146 S.W.3d at 647–48. Applying the appropriate standard of

review, the pleadings and record here disclose that appellants seek relief regarding only injuries

sustained by the community at large. See id.

Applying Harrell, appellants cannot demonstrate a particularized injury absent ownership

of a property right in property directly affected by GBRA’s operational decisions, i.e., a property

right in (1) the hydro dams, (2) the lands underneath the lakes, or (3) the water itself. 65 Tex. at

152. The uncontroverted record, through affidavits and expert reports introduced by GBRA,

demonstrates that GBRA owns each of these three property rights.

Absent a genuine issue of material fact on appellants’ ownership of a property right in the

hydro dams, the lands underlying the lakes, or the water itself, appellants cannot show a

particularized injury apart from the community at large. See Shady Shores, 590 S.W.3d at 550;

Texas Dep’t of Parks & Wildlife, 133 S.W.3d at 227–28; see also Harris v. Strawbridge, 330

S.W.2d 911, 915 (Tex. Civ. App.—Houston 1959, writ ref’d n.r.e.) (conveyance requires

-7- 04-20-00445-CV

“operative words or words of grant showing an intention by the grantor to convey title to land

which is sufficiently described to the grantee”); TEX. WATER CODE § 11.121 (no person may

appropriate state water or construct works to take, store, or divert it without a water right from the

Texas Commission on Environmental Quality). Because appellants did not establish they were

affected in a “personal and individual way,” they lack standing. See Data Foundry, 620 S.W.3d at

696, 700. We need not reach any other issue. See TEX. R. APP. P. 47.1.

Because appellants lack standing on this record, we reverse the trial court’s judgment on

appellants’ takings claims, affirm the trial court’s dismissal of all other claims, and remand for

further proceedings consistent with this opinion.

Lori I. Valenzuela, Justice

-8-