San Jacinto River Authority v. Reba Ogletree

Affirmed in Part, Reversed and Rendered in Part, and Opinion filed January
28, 2020.

In The

Fourteenth Court of Appeals
NO. 14-18-00043-CV

SAN JACINTO RIVER AUTHORITY, Appellant
V.

REBA OGLETREE, DANA GAUTIER, MICHAEL FERRIS, JANELLE
GOHEEN, ERIC LEE, PAULA LEE, NEAL HAMILTON, MARISA
HAMILTON, CHARLES MEILI, ANN MEILI, LISA BURRIS, BRIAN
THOMAS, TRICIA THOMAS, ROYCE CLICK, MONICA CLICK, DAVID
BOYD, CARMEN BOYD, JON DAVIES, DARLA DAVIES, TIM
GARFIELD, MELDA ADAMS, JOHANNES SCHMAL, SAORI SCHMAL,
ROEL VILLARREAL, MARIA VILLARREAL, ANN STRICKLER, JERRY
STRICKLER, STEVEN GREEN, JOSEFINA GREEN, PATRICK KIRBOW,
CONNIE KIRBOW, SHANNON ROUTTE, BRIAN ROUTTE, WILLIAM
BOYD, PAMELA BOYD, JOHN H. MCCLELLAN, PATRICIA
MCCLELLAN, DOUGLAS SCHERR, NICHELLE A. NEWMAN,
MATTHEW VANDERGRIFFT, EVA VANDERGRIFFT, MARJORIE
SALAZAR, JOSEPH SALAZAR, JACK ROTH, SANDRA ROTH, DAVID
CARPENTER, MARIANNE CARPENTER, CLINTON STEPHEN,
CATHERINE STEPHEN, ALBERT HARVEY, JANET HARVEY, BRUCE
WISE, CAROLYN WISE, MARK GREEN, NICOLE GREEN, RHONDA
MAPLE, GARY MAPLE, REY ASTRAQUILLO, BRAD LANEY, EMILY
LANEY, JAMES WOSENITZ, MARY ANN WOSENITZ, WILLIAM
HUTCHINS, KRISTIN HUTCHINS, K. RAY SHRUM, LAURIE SHRUM,
KRLDS PROPERTIES, LLC, GUNARADNAM RAJENDRAM, CHARLES
CHAN, VIVIAN CHAN, EMMITT L. KING JR., PATRICIA BARKER,
ERIC WHITE, YAZMIN WHITE, RONALD TISH, WENDY TISH,
MEGAN TCHOKOEV, NICHOLAS TCHOKOEV, JOHN KEATES,
NANCY KEATES, BARRY MASON, ELISABETH MASON, W. PAT
WEBER, CARROL FULKERSON, LINDA FULKERSON, NEAL DEITZ,
SHANNON DEITZ, CHUCK SKILLMAN, JANE SKILLMAN, JERRY
JONES, RUBY JONES, JEFFREY SANDERS, KRISTIN SANDERS,
RAYMOND BIRDEN, DEBRA BIRDEN, ALFRED DELEON, NOEMI
DELEON, RONEN NISSIMOV, NATALIA NISSIMOV, JAMES
GALLAGHER, KAREN GALLAGHER, DOUG BENNETT, DEBBIE
BENNETT, NATHAN BITNER, GWYNNE BITNER, ARTHUR
VOLTMANN, CAROL ANNE VOLTMANN, ROBERT MCCALL,
AMANDA MCCALL, CHAD FRY, ANNA FERKO, KARL AND MARY
EISENRING, ALICE FRANKLIN, JIM WULFSON, LESLIE WULFSON,
GARY WELLS, LISA WELLS, GERARD DOYLE, AND REBECCA
DOYLE, Appellees/Cross-Appellants

V.

TEXAS WATER DEVELOPMENT BOARD, Cross-Appellee

On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2017-65309

OPINION

Homeowners, whose properties allegedly flooded when water was released
from Lake Conroe in the aftermath of Hurricane Harvey, sued the San Jacinto
River Authority (SJRA) and the Texas Water Development Board in a Harris
County district court. The homeowners asserted inverse condemnation claims
under the Texas and United States constitutions, as well as claims for violations of
procedural and substantive due process rights. SJRA filed a motion to dismiss

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pursuant to Texas Rule of Civil Procedure 91a and a plea to the jurisdiction,
principally asserting governmental immunity. The trial court denied the motion and
the plea. The Texas Water Board filed a Rule 91a motion also asserting
governmental immunity. The trial court granted that motion.

In these interlocutory cross-appeals, SJRA challenges the denial of its plea
to the jurisdiction, while the homeowners challenge the dismissal of their claims
against the Texas Water Board.1 For the first time on appeal, SJRA and the Texas
Water Board additionally argue that the district court did not have subject matter
jurisdiction in this case because the county civil courts at law have exclusive
jurisdiction over constitutional inverse condemnation claims filed in Harris
County, citing Texas Government Code section 25.1032(c). Related to this
argument, the homeowners have moved this court to either (1) lift the stay under
Texas Civil Practice & Remedies Code section 51.014(b) to allow the homeowners
to add statutory takings claims under Government Code Chapter 2007 to their
petition in the trial court or (2) upon final adjudication of this appeal, remand this
case to the trial court so that the homeowners can plead and prosecute these
statutory taking claims. This motion has been taken with the case.

Concluding that the district court lacked subject matter jurisdiction over the
homeowners’ constitutional inverse condemnation and due process claims and that
the homeowners were not entitled to amend their pleadings, we affirm the district
court’s order dismissing the claims against the Texas Water Board for lack of
subject matter jurisdiction, reverse the district court’s order denying SJRA’s plea
to the jurisdiction, and render judgment dismissing the homeowners’ claims
against SJRA for lack of subject matter jurisdiction.

1
Texas Civil Practice and Remedies Code section 51.014(a)(8) permits an appeal from an
interlocutory order that grants or denies a plea to the jurisdiction filed by a governmental unit.

3
 Background

Hurricane Harvey moved through the Houston area in late August 2017,
bringing record-setting rains and causing widespread flooding. The homeowners
allege that their properties, which are all near either the West Fork or the East Fork
of the San Jacinto River, did not flood during Hurricane Harvey but flooded only
after the rains associated with the hurricane had dissipated and a large volume of
water was released from the Lake Conroe Dam into the West Fork. SJRA built the
Lake Conroe Dam in 1973—with assistance from the Texas Water Board—and has
operated the dam ever since. The homeowners assert that SJRA intentionally
caused the flooding of their properties to protect the integrity of the dam as well as
other properties, while the Texas Water Board retained a certain amount of
supervision or control over SJRA’s actions. The homeowners further allege that
this was not the first time that a release of water from the dam had caused flooding
on their properties.

In their second amended petition—the live petition at the time of the
relevant trial court rulings and when this appeal was filed—the homeowners raised
inverse condemnation claims under both the Texas and United States constitutions
based on the alleged physical and regulatory taking of their property. The
homeowners additionally raised procedural and substantive due process claims,
asserting that SJRA failed to produce responsive documents while moving to
dismiss the lawsuit and that SJRA and the Texas Water Board violated the
homeowners’ right to live on their properties without government-induced
flooding.

As stated above, the Texas Water Board filed a motion to dismiss for want
of jurisdiction, which the trial court granted, and SJRA filed a plea to the
jurisdiction, which the trial court denied. During the pendency of this appeal and

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while the mandatory appellate stay was in place, see Texas Civil Practice &
Remedies Code section 51.014(b), the homeowners filed a third amended petition
and a fourth amended petition adding claims against SJRA for statutory takings
under Chapter 2007 of Texas Government Code. The homeowners thereafter
withdrew those amended petitions, apparently after SJRA objected in an email. In
this appeal, as mentioned above, the homeowners request that we either lift the
mandatory appellate stay to permit them add Chapter 2007 claims to their petition
or, upon final adjudication of this appeal, remand this case to the trial court so that
the homeowners can pursue their Chapter 2007 claims.

Standards of Review

All of the issues in this appeal concern the trial court’s subject matter
jurisdiction. Subject matter jurisdiction is essential to the authority of a court to
decide a case; it therefore cannot be waived and can be raised for the first time on
appeal, even sua sponte. See Clint I.S.D. v. Marquez, 487 S.W.3d 538, 558 (Tex.
2016); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993). The existence of subject matter jurisdiction is a question of law, reviewed
de novo. See Wheelabrator Air Pollution Control, Inc. v. City of San Antonio, 489
S.W.3d 448, 451 (Tex. 2016). In assessing whether a court has subject matter
jurisdiction over particular claims, we construe the pleadings liberally in favor of
the pleader, look to the pleader’s intent, and accept as true the factual allegations in
the pleadings except to the extent negated by evidence. Tex. Parks & Wildlife
Dep’t v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).

If the pleadings are insufficient to establish jurisdiction but do not
affirmatively establish an incurable defect, the plaintiff should be afforded an
opportunity to replead. State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007);
Miranda, 133 S.W.3d at 226–27. However, if the pleadings affirmatively negate

5
the trial court’s jurisdiction, the case may be dismissed without allowing the
plaintiff an opportunity to amend. Miranda, 133 S.W.3d at 227.

Discussion

We will begin by considering whether, as SJRA and the Water Board argue
on appeal, the Harris County civil courts at law have exclusive jurisdiction over the
homeowners’ constitutional inverse condemnation claims. Concluding that they do
and the district court therefore lacked jurisdiction over the homeowners’ inverse
condemnation claims, we will then consider whether the district court retained
jurisdiction over the homeowners’ due process claims. Concluding that it did not,
we will address the proper disposition of these appeals and whether the
homeowners are entitled to a remand to amend their pleadings.

I. Constitutional Inverse Condemnation Claims

As stated, in their live pleading (the second amended petition), the
homeowners raised inverse condemnation claims under both the Texas and United
States constitutions based on the alleged physical and regulatory taking of their
property.2 SJRA and the Texas Water Board contend on appeal that Texas
Government Code section 25.1032(c) imbues the county civil courts at law with
exclusive jurisdiction over all inverse condemnation claims filed in Harris County.
That provision states in full:
2
The Fifth Amendment to the United States Constitution grants a landowner the right to
seek compensation from the government for land that the government takes: “[N]or shall private
property be taken for public use, without just compensation.” U.S. Const. amend. V. The Just
Compensation Clause applies to the states by operation of the Fourteenth Amendment. Mayhew
v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). The Texas Constitution likewise
provides for a takings claim, stating: “No person’s property shall be taken, damaged or destroyed
for or applied to public use without adequate compensation being made, unless by the consent of
such person . . . .” Tex. Const. art. I, § 17. Although the two constitutional provisions are worded
differently, the Texas Supreme Court has described them as comparable and looked to federal
cases for guidance in takings cases. See, e.g., Hallco Tex., Inc. v. McMullen Cty., 221 S.W.3d 50,
56 (Tex. 2006).

6
 A county civil court at law has exclusive jurisdiction in Harris County
of eminent domain proceedings, both statutory and inverse, if the
amount in controversy in a statutory proceeding does not exceed the
amount provided by Section 25.0003(c) in civil cases.
Notwithstanding Section 21.013, Property Code, a party initiating a
condemnation proceeding in Harris County may file a petition with
the district clerk when the amount in controversy exceeds the amount
provided by Section 25.0003(c). The amount in controversy is the
amount of the bona fide offer made by the entity with eminent domain
authority to acquire the property from the property owner voluntarily.

Tex. Gov’t Code § 25.1032(c).

This court has interpreted section 25.1032(c) as providing the county civil
courts at law with exclusive jurisdiction over all inverse condemnation claims filed
in Harris County. Doan v. TransCanada Keystone Pipeline, LP, 542 S.W.3d 794,
797, 799-801, 806 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Likewise, in a
case involving the very same release of water from the Lake Conroe Dam as is at
the heart of the present case, the First Court of Appeals came to the same
conclusion. See San Jacinto River Auth. v. Burney, 570 S.W.3d 820, 825-29 (Tex.
App.—Houston [1st Dist.] 2018, pet. filed).

Generally, Texas district courts and county courts at law have concurrent
jurisdiction in eminent-domain cases, but section 25.1032(c) creates an exception
for certain cases filed in Harris County. See Tex. Prop. Code 21.001; Burney, 570
S.W.3d at 826.3 Under section 25.1032(c), county civil courts at law in Harris
County have exclusive jurisdiction over all inverse condemnation claims and over
statutory condemnation claims in which the amount of the contemnor’s bona fide
offer is no more than $200,000, the amount currently set by section 25.0003(c).
Doan, 542 S.W.3d at 798 n.1, 806.
3
The basis for the distinction in Harris County appears to have been docket control
concerns. See Taub v. Aquila Sw. Pipeline Corp., 93 S.W.3d 451, 457–58 (Tex. App.—Houston
[14th Dist.] 2002, no pet.) (discussing legislative history).

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 Inverse condemnation claims and statutory condemnation claims are distinct
categories of eminent-domain proceedings. See Burney, 570 S.W.3d at 826. A
statutory condemnation proceeding is the method by which the government
acquires private property through the exercise of its eminent domain powers. See
Tex. Prop. Code 21.011. An inverse-condemnation action is a constitutional claim
in which the property owner asserts that a governmental entity intentionally
performed acts that resulted in a “taking” of the property for public use, without
formally condemning the property. Burney, 570 S.W.3d at 826 (citing Tarrant
Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 554 (Tex. 2004)).

Although the homeowners suggest that section 25.1032(c) provides
exclusive jurisdiction in eminent domain proceedings only when a bona fide offer
by the contemnor does not exceed $200,000, the provision cannot plausibly be read
to support that contention. The $200,000 cap expressly applies only to statutory
condemnation proceedings and not inverse condemnation proceedings. See Burney,
570 S.W.3d at 828 (rejecting identical argument). As the homeowners’ eminent
domain claims in the present lawsuit are undisputedly inverse condemnation
claims, the Harris County civil courts at law have exclusive jurisdiction, and
consequently, the district court lacked subject matter jurisdiction over these
claims.4

The court below also lacked jurisdiction over the homeowners’ inverse
condemnation claims based on the United States Constitution for the additional

4
Both sides cite legislative history that they assert supports their reading of section
25.1032(c). See Senate Research Ctr., Bill Analysis, H.B. 2536, 84th Leg., R.S. (2015) (cited by
homeowners); House Research Org., Bill Analysis, Tex. H.B. 2536, 84th Leg., R.S. (2015) (cited
by Texas Water Board). Because the legislative intent of the provision is clear from the plain
meaning of the words used, we decline to consider these extrinsic sources. See Entergy Gulf
States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); see also Burney, 570 S.W.3d at 827
n.16 (rejecting consideration of legislative history in interpreting same statute).

8
reason that these claims are not ripe. See Williamson Cty. Reg’l Planning Comm’n
v. Hamilton Bank, 473 U.S. 172, 195 (1985) (“[I]f a State provides an adequate
procedure for seeking just compensation, the property owner cannot claim a
violation of the Just Compensation Clause until it has used the procedure and been
denied just compensation.”); City of Houston v. Guthrie, 332 S.W.3d 578, 592
(Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“[A] federal takings claim is
not technically ripe until the state takings claim is resolved.”); see also Urban
Developers LLC v. City of Jackson, Miss., 468 F.3d 281, 294 (5th Cir. 2006); City
of Dallas v. VSC, LLC, 347 S.W.3d 231, 245 (Tex. 2011).

II. Due Process Claims

As mentioned, the homeowners also raised substantive and procedural due
process claims under the United States Constitution. For their substantive due
process claims, the homeowners alleged SJRA and the Texas Water Board violated
the homeowners’ right to live on their properties without government-induced
flooding. For their procedural due process claims, the homeowners alleged that
SJRA failed to produce documents relevant to the homeowners’ inverse-
condemnation claims while moving to dismiss the homeowners’ lawsuit and that
the Texas Water Board “endorsed SJRA’s refusal to produce these documents”
while also moving for dismissal.5

5
Under the Due Process Clause of the Fourteenth Amendment, no state may “deprive
any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
§ 1. The United States Supreme Court has determined that this provision has both procedural and
substantive components. E.g., Daniels v. Williams, 474 U.S. 327, 331 (1986); Reynoso v. Dibs
US, Inc., 541 S.W.3d 331, 338 (Tex. App.—Houston [14th Dist.] 2017, no pet.). A violation of
substantive due process occurs when the government deprives individuals of constitutionally
protected rights by an arbitrary use of power. Reynoso, 541 S.W.3d at 338-39. Procedural due
process requires that before an individual can be deprived of a vested property right, the
government must afford an appropriate and meaningful opportunity to be heard. Mayhew v.
Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998). Due process entails notice and an
opportunity to be heard at a meaningful time and in a meaningful manner with respect to a
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 We conclude that the district court lacks subject matter jurisdiction over the
purported substantive and procedural due process claims because, as pleaded, they
are necessarily dependent upon the viability of the inverse-condemnation claims
over which the district court lacks jurisdiction. In regard to the substantive due-
process claims, “where claims nominally asserted under other constitutional
provisions are based on what is substantively a takings claim, the former are
deemed to be ‘subsumed’ into the takings claim, and are not independently
actionable.” City of New Braunfels v. Carowest Land, Ltd., 432 S.W.3d 501, 517–
18 (Tex. App.—Austin 2014, no pet.) (citing Sandy Creek Investors, Ltd. v. City of
Jonestown, 325 F.3d 623, 626 (5th Cir. 2003), and John Corp. v. City of Houston,
214 F.3d 573, 582–83 (5th Cir. 2000)). Here, the homeowners’ claim that SJRA
and the Texas Water Board violated the homeowners’ right to live on their
properties without government-induced flooding is substantively a takings claim.
Accordingly, it is subsumed in the inverse condemnation claims and not
independently actionable. See id. at 519 (holding trial court erred in denying
governmental entity’s plea to the jurisdiction because plaintiff did not allege “any
viable claim for constitutional violations that [wa]s substantively distinct from its
non-viable takings claim”); cf. City of Houston v. Song, No. 14-11-00903-CV,
2013 WL 269036, at *4 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, pet.
denied) (mem. op.) (dismissing nuisance claim against governmental entity for
lack of jurisdiction because it was based on the same facts that formed the basis for
inverse condemnation claim on which entity retained governmental immunity).

The only procedural due process violation alleged is that the homeowners
have not received documents relevant to their inverse-condemnation claims. The
homeowners sought the documents through a request pursuant to the Texas Public
decision affecting an individual’s vested property rights. Tex. Workers’ Comp. Com’n v. Patient
Advocates of Tex., 136 S.W.3d 643, 658 (Tex. 2004).

10
Information Act. See Tex. Gov’t Code §§ 552.001-.353. But instead of seeking
civil enforcement after the denial of their request through a writ of mandamus or
action for declaratory judgment—specific remedies provided under the Act, see id.
§§ 552.321-.3215—the homeowners raised their complaint as a “procedural due
process” claim based on SJRA and the Texas Water Board’s requesting that the
trial court dismiss the inverse condemnation claims in this lawsuit. The
homeowners added the procedural due process claim in their second amended
petition only after the Texas Water Board filed its motion to dismiss.

Essentially, this is a discovery complaint, but it too is predicated on the
viability of the homeowners’ inverse-condemnation claims. In other words, the
homeowners do not state an independent basis for complaining that SJRA failed to
produce certain documents outside of its potential impact on the homeowners’
inverse-condemnation claims. Because the district court lacks subject matter
jurisdiction over the inverse-condemnation claims, it lacks jurisdiction not only to
decide the merits but also to fashion discovery relief relating solely to the
claimants’ ability to prove the merits. See In re Astrotech Corp., No. 03-13-00624-
CV, 2014 WL 711018, at *2 (Tex. App.—Austin Feb. 14, 2014, orig. proceeding)
(mem. op.) (“If the trial court does not have jurisdiction to enter a judgment, it
does not have jurisdiction to allow plaintiffs to conduct discovery.”); City of Anson
v. Harper, 216 S.W.3d 384, 390 (Tex. App.—Eastland 2006, no pet.) (same); see
also In re Hoa Hao Buddhist Congregational Church Tex. Chapter, No. 01-14-
00059-CV, 2014 WL 7335188, at *6 (Tex. App.—Houston [1st Dist.] Dec. 23,
2014, orig. proceeding) (mem. op.); In re W.L.W., 370 S.W.3d 799, 807-08 (Tex.
App.—Fort Worth 2012, orig. proceeding). We further note that, in their appeal,
the homeowners do not address the nominally asserted substantive and procedural
due process claims at all and do not contend that the district court would possess

11
jurisdiction over those claims in the event the court lacks jurisdiction over the
inverse-condemnation claims.

III. Disposition

Having determined that the district court lacked subject matter jurisdiction
over the homeowners’ constitutional inverse condemnation and due process claims
raised in the homeowners’ second amended petition, we now turn to the proper
disposition of the case.

We have carried with the case the homeowners’ “Opposed Motion for Leave
to Reinstate Appellees’ Chapter 2007 Takings Claim and Notice of Supplemental
Authority.” In their motion, the homeowners request two alternative forms of relief
in the event we were to conclude, as we do, that the district court lacks subject
matter jurisdiction over the claims in the homeowners’ second amended petition.
First, the homeowners ask us to lift the mandatory stay effective during this
interlocutory appeal so that they may amend their petition to assert statutory
takings claims under Chapter 2007 of the Texas Government Code, also known as
the Private Real Property Rights Preservation Act. Tex. Gov’t Code §§ 2007.001-
.045.6 The homeowners contend that Harris County district courts have jurisdiction
over statutory takings claims. See Tex. Gov’t Code § 2007.021(a) (requiring claims
under Chapter 2007 be brought in district court); Burney, 570 S.W.3d at 829, 831-
39 (holding alleged flood victims properly brought claims under Chapter 2007 in a
Harris County district court). The homeowners asserted such claims in their third
and fourth amended petitions filed during the pendency of the appellate stay. After
SJRA objected, the homeowners filed notices withdrawing those amended
petitions. Second, and alternatively, the homeowners request that upon final

6
See Tex. Civ. Prac. & Rem. Code § 51.014(b) (imposing automatic stay on trial court
proceedings during pendency of certain interlocutory appeals).

12
adjudication of this appeal, this court should remand this case to the district court
so that the homeowners can plead and prosecute their Chapter 2007 claims.

We deny the homeowners’ motion. First, we lack authority to lift the
legislatively mandated stay in section 51.014(b), even for a limited purpose. In re
Geomet Recycling, LLC, 578 S.W.3d 82, 86-91 (Tex. 2019). The homeowners cite
cases in which courts lifted a stay for a limited purpose. See State v. Signal
Drilling, LLC, No. 07-17-00412-CV, 2018 WL 542716, at *1 (Tex. App.—
Amarillo Jan. 23, 2018, no pet.) (mem. op.); City of Sealy v. Town Park Ctr., No.
01-17-00127-CV, 2017 WL 3634025, at *1 n.1 (Tex. App.—Houston [1st Dist.]
Aug. 24, 2017, no pet.) (mem. op.); City of Dallas v. Brown, 373 S.W.3d 204, 207
(Tex. App.—Dallas 2012, pet. denied). Their cases, however, predate In re Geomet
and do not provide a sound legal justification upon which we may lift the stay.

Second, because the district court lacks subject matter jurisdiction over all
pleaded claims, the proper remedy is to reverse the order denying SJRA’s plea and
render judgment dismissing the homeowners’ claims for lack of subject matter
jurisdiction. See City of Houston v. McGowen, No. 14–13–00415–CV, 2014 WL
2039856, at *1 (Tex. App.—Houston [14th Dist.] May 15, 2014, no pet.) (mem.
op.). The homeowners’ live petition does not allege statutory takings claims, and
their third and fourth proposed amended petitions, even assuming they were not
withdrawn, are of no effect because the homeowners filed them in violation of the
stay. See City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 8-9 (Tex.
App.—Houston [1st Dist.] 2007, no pet.); see also Roccaforte v. Jefferson Cty.,
341 S.W.3d 919, 923-24 (Tex. 2011) (holding that actions taken by trial court in
violation of the appellate stay are erroneous and voidable); In re Univ. of Tex. MD
Anderson Cancer Ctr., No. 01-19-00202-CV, 2019 WL 3418568, at *3 & n.2 (Tex.
App.—Houston [1st Dist.] July 30, 2019, orig. proceeding) (mem. op.) (explaining

13
that same applies to actions taken by parties in violation of stay). In this situation,
the homeowners’ live pleading affirmatively negates the district court’s
jurisdiction; hence, the homeowners are not entitled to a remand to plead new
claims over which the district court may possess subject matter jurisdiction. Clint
I.S.D. v. Marquez, 487 S.W.3d 538, 559 (Tex. 2016); Smith v. City of Blanco, No.
03-08-00784-CV, 2009 WL 3230836, at *6 (Tex. App.—Austin Oct. 8, 2009, no
pet.) (mem. op.). Generally, the right to replead “arises when the pleadings fail to
allege enough jurisdictional facts to demonstrate the trial court’s jurisdiction”; it is
not a “mechanism . . . for parties, over whose claims the trial court does not have
jurisdiction, to plead new claims over which the trial court does have jurisdiction.”
Clint I.S.D., 487 S.W.3d at 559. The homeowners otherwise cite no authority
supporting their request that we remand with instructions that as yet unpleaded
statutory takings claims be allowed to proceed.

Our disposition, however, is without prejudice to the homeowners’ rights, if
any, to file or refile claims in the proper court, and we express no opinion as to the
availability or viability of any future claims.

Conclusion

Because, pursuant to Government Code section 25.1032(c), the district court
lacked subject matter jurisdiction over the homeowners’ constitutional inverse
condemnation claims and dependent due process claims, we affirm the district
court’s order dismissing the claims against the Texas Water Board for lack of
subject matter jurisdiction, reverse the district court’s order denying SJRA’s plea
to the jurisdiction, and render judgment dismissing the homeowners’ claims
against SJRA for lack of subject matter jurisdiction. See Bansal v. Univ. of Tex.
M.D. Anderson Cancer Ctr., 502 S.W.3d 347, 351, 358 (Tex. App.—Houston
[14th Dist.] 2016, pet. denied).

14
 /s/ Frances Bourliot
Justice

Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.

15