Lloyd Gilliam and Carolyn Gilliam, Martha Hollan, Charlie Beaird and Karen Beaird, Lila Rose Anderson, Michael Sanders and Raquel Sanders, Richard Lon and Priscilla Lon, Donna H. Johnson, Jerome A. Bradke and Nancy Bradke, Mr. and Mrs. E.E.Ewing, Jr.et Al v. Santa Fe Independent School District

Opinion issued March 3, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00186-CV
———————————
LLOYD GILLIAM AND CAROLYN GILLIAM, MARTHA HOLLAN,
CHARLIE BEAIRD AND KAREN BEAIRD, LILA ROSE ANDERSON,
MICHAEL SANDERS AND RAQUEL SANDERS, RICHARD LON AND
PRISCILLA LON, DONNA H. JOHNSON, JEROME A. BRADKE AND
NANCY BRADKE, MR. AND MRS. E.E. EWING, JR., RICKY LEGGETT,
KENNY BEAR AND DANA BEAR, REGINA BRUEGGEMAN AND
STEVEN BRUEGGEMAN, MARLO PORRAS, DAVID CONNELL, JR.,
JASON BRONAS AND BARBARA MCGUIRE, Appellants
V.
SANTA FE INDEPENDENT SCHOOL DISTRICT, Appellee

On Appeal from the 405th District Court
Galveston County, Texas
 Trial Court Case No. 10-CV-0489

MEMORANDUM OPINION

For the second time in this case,1 we consider whether a public school district

has governmental immunity for various claims brought by residents of a subdivision

in which the school district built a student agricultural center. We affirm.

BACKGROUND

The background facts, as set forth in this Court’s previous opinion, are as

follows:

Santa Fe School District [“the District”] is a public school district
located in Santa Fe, Texas. In 2008, the District began planning to
construct a state-of-the-art agricultural center [“the Center”] to be used
by its students. Certain aspects of the planned center were included
within a November 2008 bond proposal approved by voters, which
provided for “the construction and acquisition of certain equipment for
a new agricultural center.” However, rather than use bond money to
purchase property for the Center near the local high school, the District
decided to build on property it already owned in the F.H. Thamn’s
Second Subdivision [“the subdivision”], thus eliminating the cost of
purchasing other land.

Appellants, residents of the subdivision, filed suit against the District
seeking to enjoin the construction of the Center in the subdivision.
Specifically, appellants alleged that the District’s actions breached the
subdivision’s restrictive covenants, constituted a nuisance, and were a
taking in violation of the Private Real Property Rights Preservation Act.
See TEX. GOV’T CODE ANN. § 2007.004(a) (West 2008). Appellants
also filed claims that the District had violated the Texas Open Meetings
1
See Gilliam v. Santa Fe Indep. Sch. Dist., No. 01-10-00351-CV, 2011 WL
1938476 (Tex. App.—Houston [1st Dist.] May 12, 2001, no pet.) (mem. op.)
(hereafter, “Gilliam I”).
2
 Act. See TEX. GOV’T CODE ANN. § 551.001. The District filed a plea
to the jurisdiction, which the trial court granted.

Gilliam I, 2011 WL 1938476, at *1.

On May 12, 2011, this Court held in the first appeal that (1) the State did not

waive immunity for appellants’ breach of contract claims arising out of local deed

restriction; therefore, that claim was properly dismissed, id. at *3; (2) appellants did

allege both statutory and constitutional takings claims for which immunity is not

waived, but those claims were not ripe because, at that time, the Center had not been

built, id. at *5–6; and (3) appellants’ nuisance claims were similarly not ripe. Id. at

*7. As such, the Court concluded that the breach of contract claim, takings claims,

and nuisance claims were properly dismissed. Id. However, the Court held

appellants had stated a claim alleging a violation of the Texas Open Meetings Act

[“TOMA”], a claim for which immunity is waived, and reversed and remanded

appellants’ TOMA claim for further proceedings. Id.

On remand, appellants filed a Second Amended Petition, which set forth the

remanded TOMA claim and added new constitutional and statutory takings and

nuisance claims, which they asserted were no longer unripe because the Center had

since been built. The District filed a Plea to the Jurisdiction and Partial Motion for

Summary Judgment, alleging that (1) Texas Supreme Court authority issued after

this Court’s opinion permits a court to review the merits of a claim that the plaintiff

alleges as a waiver of governmental immunity and to dismiss the claim if the plaintiff
3
cannot prove an element of the claim;2 and (2) the trial court now lacks subject matter

jurisdiction over the TOMA claims because the issue is moot. The trial court granted

the District’s Plea to the Jurisdiction and dismissed appellants’ TOMA claims on

October 30, 2012.

On March 21, 2013, appellants’ filed their Fifth Amended Petition, again

asserting constitutional and statutory takings and nuisance claims. They also

asserted for the first time that the District violated Section 11.086 of the Texas Water

Code. See TEX. WATER CODE ANN. § 11.086 (West 2008). The District responded

by filing a combined “First Amended Plea to the Jurisdiction, and Traditional and

No-Evidence Motions for Summary Judgment.” In the Plea to the Jurisdiction

section of the motion, the District alleged as follows:

(1) Plaintiffs’ nuisance, nuisance per se, and Texas Water Code claims
must be dismissed because SFISD’s immunity from suit has not
been waived for those claims;

(2) Plaintiffs’ constitutional takings claims must be dismissed because
the Plaintiffs’ judicial admission affirmatively negates this Court’s
subject matter jurisdiction to hear those claims;

2
In this Court’s opinion, we declined to determine whether there had been a TOMA
violation because the District’s argument went to the merits of the claim, not to
whether appellants’ petition alleged a claim for which immunity was waived.
Gilliam I, 2011 WL 1938476, at *7. The District argued, both in the trial court and
in this appeal, that this reasoning has been abrogated by Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 636–37 (Tex. 2012) (holding that elements of
prima facia case in statutory cause of action against government can be considered
jurisdictional facts and properly addressed by plea to jurisdiction).
4
 (3) SFISD is immune from Plaintiffs’ PRPRPA claims because those
claims were filed after the mandatory and jurisdictional 180-day
filing deadline;

(4) Plaintiffs do not have standing to bring their statutory takings claims
pursuant to the PRPRPA because no actual relief is available to the
Plaintiffs through that Act to redress their alleged damages; and

(5) SFISD remains immune from Plaintiffs’ deed restruction and
TOMA claims that still appear in their live petition even though
those claims were previously dismissed.

In the Traditional Motion for Summary Judgment section of the motion, the

District asserted that:

(1) Plaintiffs’ takings and nuisance claims are barred by the Texas Right
to Farm Act; and

(2) Plaintiffs’ claims that are premised on or tied to purported violations
of deed restrictions are barred by the doctrine of law of the case.

Finally, in the No Evidence Motion for Summary Judgment section of the

motion, the District asserted that there was no evidence that SFISD:

(1) acted intentionally in any manner that would support a constitutional
takings claim; or that

(2) plaintiffs’ property values have been diminished by the existence of
and operation of the Ag Center.

On February 6, 2014, the trial court granted appellants’ First Amended Plea

to the Jurisdiction and Traditional and No-Evidence Motions for Summary Judgment

and dismissed all of plaintiffs’ claims against the District.

This second appeal followed, challenging the trial court’s rulings.

5
 STANDARD OF REVIEW

Governmental immunity consists of immunity from liability and immunity

from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). Governmental

immunity deprives the trial court of subject-matter jurisdiction in cases where

instrumentalities of the state have been sued, absent waiver of immunity by the state.

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). A plea

to the jurisdiction is a proper instrument to raise the issue of governmental immunity.

Id. at 225–26. Whether a court has subject-matter jurisdiction is a question of law,

and we review the trial court’s grant of a plea to the jurisdiction de novo. Id. at 226.

When reviewing a grant or denial of a plea to the jurisdiction, we consider the

plaintiff’s pleadings, construed in favor of the plaintiff, and any evidence relevant to

jurisdiction without weighing the merits of the claim. Cnty. of Cameron v. Brown,

80 S.W.3d 549, 555 (Tex. 2002).

When a plea to the jurisdiction challenges the existence of jurisdictional facts,

the trial court is required to consider relevant evidence submitted by the parties.

Miranda, 133 S.W.3d at 226–27. If the evidence creates a fact issue regarding

jurisdiction, the trial court does not rule on the plea, but instead submits the issue to

the factfinder in a trial on the merits. Id. at 227–28.

The procedure for a plea to the jurisdiction when evidence has been submitted

to the trial court mirrors that of a traditional motion for summary judgment. Id. at

6
228; see also TEX. R. CIV. P. 166a(c). Thus, the burden is on the movant to present

evidence establishing that the trial court lacks jurisdiction as a matter of law.

Miranda, 133 S.W.3d at 228. Thereafter, the burden shifts to the plaintiff to

demonstrate that a disputed issue of material fact exists regarding the jurisdictional

issue. Id. “[E]ven then, the plaintiff’s burden of proof with respect to those

jurisdictional facts must not ‘involve a significant inquiry into the substance of the

claims.’” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d, 629, 637–38

(Tex. 2012).

GOVERNMENTAL IMMUNITY

In four issues on appeal, appellants contend that the trial court erred in

granting the District’s pleas to the jurisdiction.

I. Open Meetings Claim

In issue one, appellants contend the trial court erred by dismissing their claims

that the District violated the Texas Open Meetings Act [“TOMA”]. See TEX. GOV’T

CODE ANN. § 551.001-551.146 (West 2004 & Supp. 2010). TOMA expressly

waives sovereign immunity for violations of the Act. See TEX. GOV’T CODE ANN. §

551.142. TOMA requires that all meetings of governmental bodies be open to the

public unless otherwise authorized by law. Id. at § 551.002. The purpose of TOMA

is “to safeguard the public’s interest in knowing the workings of its governmental

7
bodies.” Hays County v. Water Planning P’ship, 69 S.W.3d 253, 257–58 (Tex.

App.—Austin 2002, no pet.).

Specifically, appellants argue that our previous opinion created law of the case

that “foreclosed the district court from dismissing the open meetings claim on

jurisdictional grounds.”

The law-of-the-case doctrine is defined as that principle under which

questions of law decided on appeal to a court of last resort will govern the case

throughout its subsequent stages. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.

1986); Trevino v. Turcotte, 564 S.W.2d 682, 685 (Tex. 1978). By narrowing the

issues in successive stages of the litigation, the law-of-the-case doctrine is intended

to achieve uniformity of decision as well as judicial economy and efficiency.

Hudson, 711 S.W.2d at 630; Dessommes v. Dessommes, 543 S.W.2d 165, 169 (Tex.

Civ. App.—Texarkana 1976, writ ref’d n.r.e.). The doctrine is based on public policy

and is aimed at putting an end to litigation. Hudson, 711 S.W.2d at 630; see Barrows

v. Ezer, 624 S.W.2d 613, 617 (Tex. App.—Houston [14th Dist.] 1981, no writ).

The law-of-the-case doctrine applies only to questions of law and does not

apply to questions of fact. Hudson, 711 S.W.2d at 630. Further, the doctrine does

not necessarily apply when either the issues or the facts presented in successive

appeals are not substantially the same as those involved on the first trial. Id.;

Barrows, 624 S.W.2d at 617. Thus, when in the second trial or proceeding, one or

8
both of the parties amend their pleadings, it may be that the issues or facts have

sufficiently changed so that the law of the case no longer applies. Hudson, 711

S.W.2d at 630.

Here, the District’s plea to the jurisdiction on the TOMA issues claimed, for

the first time, that “Plaintiffs’ TOMA claim is moot because the source of the

controversy—the construction of the Center—no longer exists since the Center has

been constructed and is operational.” The District argued that actions taken in

violation of TOMA are voidable, not void, see TEX. GOV’T CODE ANN. § 551.141

(West 2008), and that “no relief [could] be granted with respect to any purported

improper action of the board related to the construction of the Center because the

multi-million dollar Center has been built at the location selected by SFISD

Administrators; the Center is fully operational; and all contracts related to the

construction of the Center have been fully performed.” Mootness is an issue of

subject-matter jurisdiction. Univ. of Tex. Med. Branch at Galveston v. Estate of

Blackmon, 195 S.W.3d 98, 100–01 (Tex. 2006). Subject-matter jurisdiction cannot

be waived, and can be raised at any time. Univ. of Tex. Sw. Med. Ctr. at Dallas v.

Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004).

Because the District raised a new jurisdictional issue that this Court did not

consider in Gilliam I, the trial court was not constrained by the law-of-the-case

doctrine and properly considered the District’s Plea to the Jurisdiction.

9
 Appellant’s also appear to argue that the District filed, and the trial court ruled

on, the District’s Plea to the Jurisdiction relating to the TOMA claims before the

discovery deadline set by the docket control order had passed. When a party

contends that it has not had an adequate opportunity for discovery before a summary-

judgment hearing, the party must file either an affidavit explaining the need for

further discovery or a verified motion for continuance. See Tenneco, Inc. v. Enter.

Prods., Co., 925 S.W.2d 640, 647 (Tex. 1996); West v. SMG, 318 S.W.3d 430, 443

(Tex. App.—Houston [1st Dist.] 2010, no pet.). The record does not reflect that

appellants took either of these steps; thus, they failed to preserve error. See Tenneco,

Inc., 925 S.W.2d at 647; Doe v. Roman Catholic Archdiocese of Galveston–Houston

ex rel. Dinardo, 362 S.W.3d 803, 811–12 (Tex. App.—Houston [14th Dist.] 2012,

no pet); Triad Home Renovators, Inc. v. Dickey, 15 S.W.3d 142, 145 (Tex. App.—

Houston [14th Dist.] 2000, no pet).3 Further, on appeal, appellants do not argue how

the time they were actually given was inadequate or what they would have

discovered if given more time.

We overrule appellants’ first issue.

II. Law of the Case as to Remaining Claims

3
Additionally, the trial court’s ruling on the TOMA claim was an interlocutory
dismissal granted on October 30, 2012. The final judgment granting the District’s
Plea to the Jurisdiction and Motion for Traditional and No-Evidence Summary
judgment on the remaining claims was not signed until February 6, 2014. In the
interim, discovery was completed.
10
 In their second issue on appeal, appellants contend “the district court erred in

its interpretation of this Court’s prior order; the law of the case governs and the court

had jurisdiction to consider the subject claims.” Although not clear from appellants’

brief, it seems that appellants’ are contending that the trial court refused to consider

their repleaded constitutional and statutory takings claims, which were in their

second [and subsequent] amended petitions. To understand appellants’ complaint,

it is necessary to review the language of the trial court’s order, which provides:

Pending before the Court is the Defendant’s First Amended Plea to the
Jurisdiction, Traditional and No-Evidence Motions for Summary
Judgment. The Court, having considered the Motion, Plaintiffs’
responses, Defendant’s replies, the evidence, arguments of counsel, the
applicable law, and the record is of the opinion that the Court’s previous
order granting Defendant’s Plea to the Jurisdiction which was affirmed
in part by the Court of Appeals disposed of all of Plaintiffs’ claims set
forth in their First Amended Petition (including nuisance, nuisance per
se, violation of city ordinances, violation of restrictive covenants, and
all claims related to or involving a takings claim) other than Plaintiffs’
claims that Defendant violated the Texas Open Meetings Act.

Thereafter, the Court granted Defendant’s Plea to the Jurisdiction and
Partial Motion for Summary Judgment as to Plaintiff’s Texas Open
Meetings Acts claims. Defendant claims that Plaintiffs asserted a new
claim of violation of the Texas Water Code. The Texas Water Code
claim, however, was part of Plaintiff’s nuisance claim which has
already been dismissed for lack of subject matter jurisdiction.
Alternatively, even if the Texas Water Code claim has not already been
dismissed, the Court find that Defendant’s First Amended Plea to the
Jurisdiction, Traditional and No-Evidence Motions for Summary
Judgment has merit as to the Texas Water Code claim as well.

Therefore, the Court GRANTS Defendant’s First Amended Plea to the
Jurisdiction, Traditional and No-Evidence Motions for Summary

11
 Judgment. All of Plaintiffs’ claims against Defendant are hereby
dismissed. This is a final, appealable order. (Emphasis added).

Appellants construe the first paragraph of the order above as a refusal to

consider appellants’ amended petitions, which they assert misconstrues this Court’s

previous opinion and violates the law-of-the-case doctrine. We disagree with their

interpretation of the trial court’s order. In the first paragraph above, the trial court

specifies that the claims in appellants’ First Amended Petition have been dismissed.

The second paragraph disposes of the remanded TOMA claim. The third paragraph

grants the District’s First Amended Plea to the Jurisdiction, which sought dismissal

of all remaining claims in appellants’ amended petitions, including the new takings

claims, which were based on the since-completed Center. By granting the District’s

First Amended Plea to the Jurisdiction, which sought dismissal of the claims in

appellants’ amended petitions, the trial court necessarily considered the claims in

appellants’ amended petitions.

Accordingly, we overrule appellants’ issue two.

III. Takings Claims

In issue three, appellants contend the trial court erred in dismissing their

takings claims. Appellants claimed both a statutory taking under section 2007.021

of the Government Code and a Constitutional taking. The District filed a no-

evidence motion for summary judgment, contending that there was no evidence of

an intentional taking by the District.
12
 A. Standard of Review and Applicable Law

After adequate time for discovery, a party may move for a no-evidence

summary judgment on the ground that no evidence exists to support one or more

essential elements of a claim or defense on which the opposing party would have the

burden of proof at trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517,

523–24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The trial court must

grant the motion unless the nonmovant produces summary judgment evidence

raising a genuine issue of material fact. Id. More than a scintilla of evidence exists

if the evidence “would allow reasonable and fair-minded people to differ in their

conclusions.” Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex.

2003). To defeat a no-evidence motion for summary judgment, the respondent is not

required to marshal its proof; its response need only point out evidence that raises a

fact issue on the challenged elements. TEX. R. CIV. P. 166a(i) cmt.

The Private Real Property Rights Preservation Act (“PRPRPA”) defines a

government taking, as follows:

(A) a governmental action that affects private real property, in whole or
in part or temporarily or permanently, in a manner that requires the
governmental entity to compensate the private real property owner as
provided by the Fifth and Fourteenth Amendments to the United States
Constitution or Section 17 or 19, Article I, Texas Constitution; or

(B) a governmental action that:

(i) affects an owner’s private real property that is the subject of
the governmental action, in whole or in part or temporarily or
13
 permanently, in a manner that restricts or limits the owner’s right
to the property that would otherwise exist in the absence of the
governmental action; and

(ii) is the producing cause of a reduction of at least 25 percent in
the market value of the affected private real property, determined
by comparing the market value of the property as if the
governmental action is not in effect and the market value of the
property determined as if the governmental action is in effect.

TEX. GOV’T CODE ANN. § 2007.002(5) (West 2009). The PRPRPA waives immunity

to suit and liability “to the extent of liability created by [the Act].” TEX. GOV’T CODE

ANN. § 2007.004. Thus, the PRPRPA waives immunity for “governmental actions”

alleged to have caused (1) a Constitutional taking, or (2) of a reduction of at least 25

percent in the market value of the affected private real property. Id. Here, appellants

claim a Constitutional taking as the basis for their PRPRPA claim.

A governmental entity may be held liable for a nuisance that rises to the level

of a Constitutional taking. See Jennings, 142 S.W.3d at 316; see also City of Abilene

v. Downs, 367 S.W.2d 153, 159 (Tex. 1963) (“[I]f the construction and operation of

the plant results in a nuisance, such acts of the municipality constitute a damaging

or taking of property under Section 17 of Article I of the Texas Constitution.”). The

Fifth Amendment grants a landowner the right to seek compensation from the

government for land that it takes: “[N]or shall private property be taken for public

use, without just compensation.” U.S. CONST. amend. V. Likewise, the Texas

Constitution provides, “No person’s property shall be taken, damaged, or destroyed

14
for or applied to public use without adequate compensation being made, unless by

the consent of such person.” TEX. CONST. art. I, § 17. Thus, while sovereign

immunity protects the State from lawsuits for monetary damages, it “offers no shield

against a taking claim brought under Article I, section 17 of the Texas Constitution.”

John G. & Marie Stella Kenedy Mem’l Found. v. Mauro, 921 S.W.2d 278, 282 (Tex.

App.—Corpus Christi 1995, writ denied); see also Gen. Servs. Comm’n v. Little-Tex

Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001) (sovereign immunity does not shield

State from action for compensation under takings clause). Rather, “[t]he Constitution

itself is . . . a waiver of governmental immunity for the taking, damaging or

destruction of property for public use.” Steele v. City of Houston, 603 S.W.2d 786,

791 (Tex. 1980).

If a governmental entity takes, damages, or destroys property for public use

without process or proper condemnation proceedings, governmental immunity is

waived, and an action for inverse condemnation will lie. City of Dallas v. Blanton,

200 S.W.3d 266, 271 (Tex. App.—Dallas 2006, no pet.). To establish the claim, the

claimant must prove: (1) a governmental entity intentionally performed certain acts

(2) that resulted in a taking or damaging of property (3) for public use. Dallas,

Garland & Ne. R.R. v. Hunt County, 195 S.W.3d 818, 821 (Tex. App.—Dallas 2006,

no pet.). A physical taking, as opposed to a regulatory taking, is an unwarranted

physical appropriation or invasion of the property. Blanton, 200 S.W.3d at 271.

15
“When damage is merely the accidental result of the government’s act, there is no

public benefit and the property cannot be said to be taken or damaged for public

use.” City of Dallas v. Jennings, 142 S.W.3d 310, 313 (Tex. 2004) (internal

quotations and emphasis omitted).

B. No Evidence of Intentional Taking

In their No Evidence Motion for Summary Judgment, the District contended

that the claims against it should be dismissed because plaintiffs presented no

evidence that the District acted intentionally or that they property values had been

diminished by the existence and operation of the Center. We agree.

Takings can be classified as physical or regulatory. Mayhew v. Town of

Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). Physical takings occur when the

government authorizes an unwarranted physical occupation of an individual’s

property. Id. Physical possession is, categorically, a taking for which compensation

is constitutionally mandated. Sheffield Dev’t Co., Inc. v. City of Glenn Heights, 140

S.W.3d 660, 669–70 (Tex. 2004). In contrast to a physical taking, a restriction on

the permissible uses of property or a diminution in its value resulting from regulatory

action within the government’s police power may or may not be a compensable

taking depending on the circumstances. Id. Here, appellants have pleaded a physical

taking, not any governmentally imposed regulation or restriction, thus we review the

16
record to determine whether there is some evidence of an “unwarranted physical

occupation” of their properties.

In their response to the District’s Motion, appellants provided an expert report

from Arthur Malone which stated that “[i]f a large overflow of contaminated

stormwater were to overrun their well surface areas, a potential for contamination

can occur.” He then concluded that the location of the Center presented “potential

groundwater contamination,” and that “drinking wells in the immediate area [of] the

Agricultural pond regularly contain coliform/E.coli bacteria amounts at greater than

safe limits raising fears of groundwater contamination from the pond.” However,

Malone did not conclude that any groundwater contamination had actually occurred,

or that if it had, it was caused by the presence of the Center.

Appellants also presented two groundwater tests to support their assertion that

the groundwater on their properties had been contaminated by presence of the

Center. First, Southwestern Laboratories, at the request of plaintiff Gilliam,

performed a test for fecal coliform on two samples taken from ditches near the

Center. The test results “indicate fecal coliform amounts well in excess of the above

limits that [Gilliam] provided.” However, there is no evidence that the ditches were

located on the property of any of the plaintiffs.

Appellants also presented evidence that only two of them—Gilliam and

Hollan—had their wells tested, and that both tests were positive for coliforms or

17
bacteria. However, there is no evidence indicating the source of bacteria found in

the wells or linking it to the presence of the Center.

Thus, we conclude that appellants did not present a scintilla of evidence that

the District committed an intentional, unwarranted physical appropriation or

invasion of their properties. As such, they did not raise a fact question on the issue

of a Constitutional taking.

We overrule appellants’ issue three.

IV. Nuisance and Water Code Claims

In their fourth issue, appellant contend the trial court erred in dismissing their

nuisance claims. Appellants explain that their nuisance claims are, in fact, part and

parcel of their Constitutional takings claim, and they are alleging that the nuisance

rose to the level of a Constitutional taking, an act for which immunity is waived. For

the same reason that we affirmed the judgment on appellants’ takings claims in issue

three, we also overrule their nuisance claims.

Regarding their Water Code claims, this Court has acknowledged that the

Water Code does not waive governmental immunity from suit. See Church v. City

of Alvin, No. 01-13-00865-CV, 2015 WL 5769998, at *4 (Tex. App.—Houston [1st

Dist.] Sept. 29, 2015, no pet.) (mem. op.) (citing City of Midlothian v. Black, 271

18
S.W.3d 791, 797–98 (Tex. App.—Waco 2008, no pet.) (holding that section 11.086

of Water Code does not waive immunity from suit).

We overrule appellants’ issue four.

CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack
Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

19