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

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

__________________________________________________________________

DENNIS AMBROSE
Appellant

v.

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

29