Lake Residents Vs Gbra 1
Lake Residents Vs Gbra 1
___________
BADGER, ROBERT SIMS, JOHN EWALD and JIM C. DANIELL (collectively, “Plaintiffs”)
and file this Plaintiffs’ Original Petition and Application for Injunctive Relief complaining of
I.
DISCOVERY CONTROL PLAN
1. Plaintiffs intend to conduct discovery under Level 3 pursuant to Rule 190.4 of the
2. In accordance with TEX. R. CIV. P. 47(c), Plaintiffs state that they seek temporary
and permanent injunctive relief. Alternatively, or additionally, Plaintiff’s state that they
collectively seek monetary relief over $1,000,000.00 in this case. In accordance with TEX. R.
CIV. P. 47(b), Plaintiffs state that the damages sought in this case are within the jurisdictional
III.
PARTIES
3. Plaintiff, Kevin Skonnord, is and at all relevant times has been a citizen and
resident of the State of Texas and owner of real property in Guadalupe County at 447 Lake
4. Plaintiff, Keith C. Strimple, is and at all relevant times has been a citizen and
resident of the State of Texas and owner of real property in Guadalupe County at 274 Riverview
5. Plaintiff, Clark P. Weldon, is and at all relevant times has been a citizen and
resident of the State of Texas and owner of real property in Guadalupe County at 168 Lee St.,
Seguin, TX 78155.
6. Plaintiff, Raymond Thomas, is and at all relevant times has been a citizen and
resident of the State of Texas and owner of real property in Guadalupe County at 2094 W.
7. Plaintiff, Grant McFarland, is and at all relevant times has been a citizen and
resident of the State of Texas and owner of real property in Guadalupe County at 258 Riverview
resident of the State of Texas and owner of real property in Guadalupe County at 3370 State
9. Plaintiff, Peter Badger, is and at all relevant times has been a citizen and resident
of the State of Texas and owner of real property in Guadalupe County at 636 Woodlake Dr.,
McQueeney, TX 78123.
10. Plaintiff, Robert Sims, is and at all relevant times has been a citizen and resident
of the State of Texas and owner of real property in Guadalupe County at 1781 Terminal Loop
11. Plaintiff, John Ewald, is and at all relevant times has been a citizen and resident of
the State of Texas and owner of real property in Guadalupe County at 2322 Laguna Rio, Seguin,
TX 78155.
12. Plaintiff, Jim C. Daniell, is and at all relevant times has been a citizen and resident
of the State of Texas and owner of real property in Guadalupe County at 198 Daniel Aly,
McQueeney, TX 78123.
conservation and reclamation district, governmental agency, and political subdivision of the
State of Texas created by special act of the Texas Legislature in 1933 as the Guadalupe River
Authority under Article XVI, Section 59, of the Texas Constitution and reauthorized by special
act of the Texas Legislature as the Guadalupe-Blanco River Authority and codified in Article
8280-106 V.T.C.S. Pursuant to Section 49.066(c) of the Texas Water Code, the GBRA may be
served with process by serving its General Manager, Kevin Patteson, at 933 East Court Street,
the real property located at the address following his or her name in the above paragraphs. All
the referenced real property and the personal property located thereon (collectively, “Plaintiffs’
Property”) is located on the waterfront of either Lake McQueeney or Lake Placid, which such
lakes are each part of the Guadalupe River basin and within the jurisdiction of the GBRA.
IV.
JURISDICTION
15. This Court has personal jurisdiction over the GBRA. The GBRA is a state agency
created by the Texas Legislature in 1933 as the Guadalupe River Authority and reauthorized in
1935 as the GBRA. Per its website, “[t]he mission of GBRA is to support responsible watershed
protection and stewardship, provide quality operational service, and a commitment to promote
conservation and educational opportunities in order to enhance quality of life for those [the
GBRA] serve[s]” in the Guadalupe River basin. 1 The GBRA’s jurisdiction covers and it
operates in “its ten-county statutory district, which begins near the headwaters of the Guadalupe
and Blanco Rivers, ends at San Antonio Bay, and includes Kendall, Comal, Hays, Caldwell,
Guadalupe, Gonzales, DeWitt, Victoria, Calhoun and Refugio counties.” 2 The GBRA’s
principal place of business, general offices, and headquarters are all located in Texas. The
claims asserted against the GBRA set forth herein also arise out of or relate to the GBRA’s
operations in Texas. As such, this Court has general and specific jurisdiction.
16. This Court also has subject-matter jurisdiction over the GBRA and the
constitutional claims asserted against the GBRA herein. The constitutional claims asserted by
Plaintiffs against the GBRA are claims for inverse condemnation and the unconstitutional
1
https://gbra.org/about/default.aspx
2
Id.
Court of subject matter jurisdiction over all the constitutional claims asserted and set forth
herein. See Harris Cnty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016)
(“Sovereign immunity does not shield the government from liability for compensation under the
takings clause.”) (citing Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598
(Tex. 2001) (Article 1, Section 17 of the Texas Constitution waives immunity from suit for an
inverse condemnation claim)). Accordingly, the GBRA has no immunity from suit or liability in
17. Likewise, because the alternative or additional statutory claims asserted against
the GBRA are expressly authorized by Section 2007 of the Texas Government Code, the GBRA
also has no immunity from suit or liability in connection with the statutory claims asserted
against it herein. TEX. GOV’T CODE § 2007.004(a) (“Sovereign immunity to suit and liability is
waived and abolished to the extent created by [Chapter 2007 of the Texas Government Code].”).
18. The claims asserted by Plaintiffs herein are asserted under the Texas Constitution
and Texas statutory law. Plaintiffs do not assert any claim under the United States Constitution
or Federal statutory law. Plaintiffs’ claim are purely Texas law claims.
V.
VENUE
19. Venue is proper in Guadalupe County, Texas pursuant to Section 15.002 of the
Texas Civil Practices & Remedies Code because Guadalupe County, Texas is the county in
which a substantial part of the events, acts or omissions giving rise to the claims asserted
20. Venue is also proper in Guadalupe County, Texas pursuant to Section 15.011 of
the Texas Civil Practices & Remedies Code because the claims and causes of action set forth
County, Texas. Plaintiffs’ Property is located and present in Guadalupe County, Texas.
21. Venue with respect to Plaintiffs’ statutory claims under Section 2007 of the Texas
Government Code also is proper in Guadalupe County, Texas because the real property at issue
VI.
STATEMENT OF FACTS
22. The GBRA is a conservation and reclamation district, governmental agency, and
political subdivision of the State of Texas created by special act of the Texas Legislature in 1933
as the Guadalupe River Authority under Article XVI, Section 59, of the Texas Constitution and
reauthorized by special act of the Texas Legislature as the Guadalupe-Blanco River Authority
and codified in Article 8280-106 V.T.C.S. Article XVI, Section 59(a), (b) and (c):
(a) The conservation and development of all of the natural resources of this
State, and development of parks and recreational facilities, including the
control, storing, preservation and distribution of its storm and flood
waters, the waters of its rivers and streams, for irrigation, power and all
other useful purposes, the reclamation and irrigation of its arid, semiarid
and other lands needing irrigation, the reclamation and drainage of its
overflowed lands, and other lands needing drainage, the conservation and
development of its forests, water and hydro-electric power, the navigation
of its inland and coastal waters, and the preservation and conservation of
all such natural resources of the State are each and all hereby declared
public rights and duties; and the Legislature shall pass all such laws as
may be appropriate thereto.
(b) There may be created within the State of Texas, or the State may be
divided into, such number of conservation and reclamation districts as
may be determined to be essential to the accomplishment of the purposes
of this amendment to the constitution, which districts shall be
governmental agencies and bodies politic and corporate with such powers
of government and with the authority to exercise such rights, privileges
(c) The Legislature shall authorize all such indebtedness as may be necessary
to provide all improvements and the maintenance thereof requisite to the
achievement of the purposes of this amendment. All such indebtedness
may be evidenced by bonds of such conservation and reclamation districts,
to be issued under such regulations as may be prescribed by law. The
Legislature shall also authorize the levy and collection within such
districts of all such taxes, equitably distributed, as may be necessary for
the payment of the interest and the creation of a sinking fund for the
payment of such bonds and for the maintenance of such districts and
improvements. Such indebtedness shall be a lien upon the property
assessed for the payment thereof. The Legislature shall not authorize the
issuance of any bonds or provide for any indebtedness against any
reclamation district unless such proposition shall first be submitted to the
qualified voters of such district and the proposition adopted.
23. Portions of Chapter 51 of the Texas Water Code are among the laws passed by
Texas Legislature and applicable to the GBRA. The functions of the GBRA include, without
limitation, the control, storage, preservation, conservation and development of water and
24. Pursuant to and in accordance with its constitutional and statutory authority, the
stated mission of the GBRA “is to support responsible watershed protection and stewardship,
provide quality operational service, and a commitment to promote conservation and educational
opportunities in order to enhance quality of life for those [the GBRA] serve[s]” in the Guadalupe
River basin. 3 The GBRA’s jurisdiction covers and it operates in “its ten-county statutory district,
which begins near the headwaters of the Guadalupe and Blanco Rivers, ends at San Antonio Bay,
and includes Kendall, Comal, Hays, Caldwell, Guadalupe, Gonzales, DeWitt, Victoria, Calhoun
3
https://gbra.org/about/default.aspx
4
https://www.gbra.org/maps/basin.aspx
(“GVHS”). GVHS consists of six dams/levees put into service between 1928-1932, including
dams located on Lake Placid, Lake McQueeney, Lake Gonzales and Meadow Lake (collectively,
the “Lakes”). The GBRA sells the electricity it generates from the Lakes to the Guadalupe
Valley Electric Cooperative. In addition to hydroelectric generation, crews from the GBRA
provide around the clock operations of spill gates at the dams to pass floodwaters through the
system.
26. Article 8280-106 V.T.C.S. authorizes the GBRA to exercise the following
powers:
• Construct, extend, improve, maintain and reconstruct any and all facilities of
any kind, including, without limitation, the dams on the Lakes; and
• Pay all expenses necessary for the operation and maintenance and
replacements and additions to its properties and facilities, including the dams
on the Lakes.
27. Although the GBRA has previously characterized the overall condition of its
infrastructure and capital assets as “generally good,” 5 the dams are nearing 100 years old and the
GBRA has been aware for decades of the aging materials and antiquated design of the dams.
Nonetheless, the GBRA knowingly and intentionally failed to implement repair and replacement
28. In 2016, a spill gate at the Lake Wood Dam failed. After the failure, GBRA
engaged the consulting firm, Freese and Nichols, Inc. (“FNI”), to investigate the cause of the
failure and provide recommendations to the GBRA. FNI observed failed gate segments and
5
See Exhibit E, p. 13.
29. A report from FNI dated June 8, 2018 stated that FNI was working with the
GBRA “as a partner to get the most additional life out of the existing gates whereas the
recommendations [by FNI to the GBRA] are to replace the gates.” 6 However, instead of
implementing a plan to replace the gates, the GBRA pursued repairs intended to serve only as a
“temporary” fix. Towards the end of 2017 and through 2018, FNI performed visual inspections
of certain dam gates on the Lakes, including gates at TP-4 (Lake Placid) and Lake McQueeney
Dams. Each of these visits was followed by a memorandum from FNI to the GBRA specifically
identifying recommended repairs to the gates. 7 None of these reports advised that a failure of
30. In 2015, the 84th Legislature placed the GBRA and all other river authorities in
the State of Texas under review by the Sunset Advisory Commission (the “Sunset
31. The Sunset Commission reviewed the GBRA and issued its report in September
2018 (the “Sunset Commission Report”). 8 The Sunset Commission’s findings include the
following:
6
Exhibit C.
7
True and correct copies of FNI Memorandum dated December 12, 2017, March 21, 2018, June 8, 2018, and
August 13, 2018 are attached hereto as Exhibit A, Exhibit B, Exhibit C, and Exhibit D, respectively.
8
A true and correct copy of the Sunset Commission Report is attached hereto as Exhibit E.
• GBRA’s procurement and contracting systems lack clear central oversight and
coordination to ensure consistent, efficient operations;
• GBRA has provided significant funding ($4 million since 2001) to three
nonprofits without defining clear expectations for its investments; and
• GBRA has not fully evaluated the continued need for its partnership with these
nonprofits. 9
32. The Sunset Commission specifically addressed the failure of one of the spill gates
at Lake Wood and reported that “most of the other gates in the [GVHS] system need significant
maintenance.” 10
33. The Sunset Commission also reported on the “major impacts” infrastructure can
have on local communities. Although the only financial stakeholder in the GVHS is Guadalupe
Valley Electric Cooperative (GBRA’s electric customer), the Sunset Commission reports that the
lakes affect many aspects of the lives of lake residents, including, in the case of Lake Wood dam
failure, quality of life and tax values on formerly lake front property. The Sunset Report states
that “the residents of Lake Wood have been very vocal about the effects of the broken spill gate
on their community and have raised questions about why GBRA did not have repair and
replacement plans in place before the dam reached this critical breaking point.” 11
9
See Exhibit E.
10
Id., p. 13.
11
Id., p. 15.
34. The Sunset Report states that the GBRA “budgeted $3.7 million for studies to
determine options for repair or replacement of the gates and to make repairs at four of the
dams.” 12 However, by comparison, the GBRA spent over $21 million on salaries, benefits,
administration and other expenses, including board expenses, in fiscal year 2017. 13 In addition,
since 2001, the GBRA contributed more than $4 million to non-profit groups in the form of
salaries, benefits, rent and operating expenses without defining any clear expectations for its
investments. 14
35. On May 8, 2018, Kevin Patteson, General Manager and CEO of the GBRA,
provided a short, two-page response to the Sunset Commission’s findings and recommendations,
but did not specifically reference the GVHS or provide any details whatsoever identifying any
repair or replacement plans the GBRA intended to pursue to remedy the problems identified in
the Sunset Report regarding the aging materials and design of the dams on the Lakes or to
otherwise avoid another dam failure. 15 Meanwhile, based upon a presentation made by Mr.
Patteson regarding the purported need for new office space, the GBRA board unanimously
approved plans for the GBRA to enter into negotiations with an architect to build a new $6
E. MAY 14, 2019 LAKE DUNLAP DAM FAILURE AND GBRA REPRESENTATIONS TO
THE PUBLIC.
36. On May 14, 2019 (3 years after the Lake Wood spill gate failure), spillway gate
12
Exhibit E, p. 13.
13
Id., p. 10.
14
Id., p. 23.
15
Exhibit F.
committed to finding a solution to replace the spill gates at all of our aging dams.” 16
38. On July 17, 2019, the GBRA issued a press release stating that it was “continuing
discussions on how to mitigate safety risks to recreationalists downstream of its four remaining
hydroelectric lakes,” but noted that “one option to significantly lower lakes McQueeney, Placid,
Meadow, and Gonzales by up to 12 feet was discussed at the GBRA board of directors meeting
Wednesday, July 17, 2019, in Seguin.” 17 The press release indicated that no decision had been
made and advised that “[a]mple public notice will be provided in advance prior to any changes to
39. GBRA engaged Black & Veatch (“B&V”) to “develop and implement a plan to
evaluate the condition of the upstream hinges at Lake Dunlap Dam.” 19 U.S. Underwater
Services, LLC was contracted to inspect failed Gate No. 2 and retrieve a single hinge assembly
40. B&V provided the GBRA with B&V’s Dunlap Spillgate Hinge Inspection
Report.” dated August 13, 2019 (the “B&V Report”). 20 B&V provided the GBRA with its
limited opinion that “if the inspected hinge assembly is representative of the condition of the
hinges on the other gates then the hinge assemblies are no longer adequate for continued service
and thus the remaining gates at all other dams in the system are no longer adequate for continued
16
Exhibit G.
17
Exhibit H.
18
Id.
19
Exhibit I.
20
A true and correct copy of the Black & Veatch “Dunalp Spillgate Hinge Inspection Report” dated August 13,
2019 is attached hereto as Exhibit I.
based on visual inspection of only one hinge assembly [from a spill gate that did not fail].” 22
41. In addition, the B&V Report does not state that failure of any of the
remaining spill gates is imminent. Furthermore, B&V does not conclude, determine or
opine that a drawdown of the Lakes is the only available option for minimizing the risks
associated with the aging dams. In fact, the GBRA selected B&V in November 2017 for
design and engineering services to replace the spill gates at all dams in the GVHS.
42. On August 15, 2019 (2 days after the date of the B&V Report), the GBRA
announced its decision to abandon all other efforts and attempts to mitigate potential safety risks
and instead engage in a systematic drawdown of the Lakes beginning on September 16, 2019.
Alluding to the B&V Report, the GBRA falsely represented in its press release that “[t]hird-party
engineering assessments have determined a drawdown is the only available option for
minimizing the risks associated with the aging dams.” 23 No such conclusion was reached by
43. Charlie Hickman, GBRA executive manager of engineering, publicly outlined the
GBRA’s purported dilemma concerning the GBRA’s continued maintenance and operation of
the dams but did not mention any threat of imminent dam failure. Instead, Mr. Hickman claimed
that the revenue generated from the hydro-electric power from the Lakes “isn’t enough to make
21
Id. (emphasis added).
22
Id. (emphasis added).
23
Exhibit J.
24
See Exhibit I.
Commission in September 2017 that that there are numerous stakeholders, including property
owners like Plaintiffs, who have an interest or are affected by lake levels. 27 The GBRA further
acknowledged the potential adverse effect on property values and tax revenues. 28
admitted that the GBRA has the “capability” and “mechanisms to go out and get below-market
interest rates to secure the financing for this project [to overhaul the dams].” 29
46. Nevertheless, the GBRA unilaterally alleviated itself of the obligation and
expense of repairing or replacing the dams, and knowingly and intentionally shifted the burden
to Plaintiffs and other property owners to bear the consequences of the GBRA’s decades long
failure and refusal to implement repair and replacement plans for the dams.
47. In response to public outcry and claims by property owners, including Plaintiffs,
of an unconstitutional “taking” by the GBRA of their private property, the GBRA hired outside
legal counsel and directed funds and other resources to engage in an aggressive media campaign
which mischaracterized findings from engineering assessments and falsely castigated Plaintiffs
and other property owners as placing their constitutional property rights above the need for
25
Dalondo Moultrie, GBRA Says It Sees a Future for its Lakes, NEW BRAUNFELS HERLAD-ZEITUNG (Sept. 1, 2019),
http://herald-zeitung.com/community_alert/article_8cd79a1e-cc3a-11e9-9eca-1b2bee77906b.html.
26
Id.
27
See Exhibit K, p. 28.
28
Id.
29
Dalondo Moultrie, GBRA Says It Sees a Future for its Lakes, NEW BRAUNFELS HERLAD-ZEITUNG (Sept. 1, 2019),
http://herald-zeitung.com/community_alert/article_8cd79a1e-cc3a-11e9-9eca-1b2bee77906b.html.
article published in the San Antonio Express on August 29, 2019 that Plaintiffs and other
community members that oppose the drawdown are not being “good neighbor[s].” 30
48. In its July 17, 2019 press release, the GBRA initially characterized the significant
lowering of the Lakes as an “option” discussed by the board of directors to “mitigate safety risks
for recreationalists downstream of its four remaining hydroelectric lakes.” 31 Approximately one
month later (after public outcry), the GBRA redesigned its messaging in a press release
published on its website in August 2019 so that the “option” for lowering the Lakes to mitigate
safety risks for recreationalists downstream had now evolved into a “necessary” and
“unavoidable” decision in order “to ensure the safety of the surrounding communities.” 32
49. Furthermore, the GBRA stated in its August 2019 press release that “assessment
by nationally recognized engineering firm Black & Veatch has indicated the original structural
mischaracterization of the actual conclusion of B&V. After its visual inspection of one hinge
assembly from one gate at Lake Dunlap that did not fail, B&V only speculated that “if the [one]
inspected hinge is representative of the condition of the hinges on the gates, then the hinge
assemblies are no longer adequate for continued service and thus the remaining gates at all other
50. Inspections done by other GBRA retained experts (FNI) reveal that the
hypothetical “if” set forth in the B&V Report is unlikely. As noted above, FNI performed a
30
Kevin Patteson, Why GBRA Must Dewater These Lakes, SAN ANTONIO EXPRESS NEWS (Aug. 29, 2019),
https://www.expressnews.com/opinion/commentary/article/Why-GBRA-must-dewater-these-lakes-14394319.php.
31
Exhibit H.
32
Exhibit J.
33
Id.
34
Exhibit I (emphasis added).
December 12, 2017 that “very little corrosion or section loss was identified at this gate” and
recommended certain repairs to the GBRA based on FNI’s inspection and finite element model
51. Moreover, the GBRA stated in its August 2019 press release that “[t]hird party
engineering assessments have determined a drawdown is the only available option for
minimizing the risks associated with the aging dams.” 36 This statement is patently false.
Neither the B&V nor any of the FNI reports include any such conclusions or statements. In fact,
in a GBRA press release issued only three months prior, GBRA “recogniz[ed] the value of [the
Lakes] to the community” and was “committed to finding a solution to replace the spillgates at
all of [the] aging dams.” 37 GBRA also noted that after the spill gate failure at Lake Wood,
GBRA began working with engineers to replace all aging spill gates with a more modern system
52. GBRA Manager and CEO, Kevin Patteson, also stated in his opinion piece in the
San Antonio Express News that the evaluations of B&V and FNI “clearly indicate the imminence
of another failure if the [GBRA] allow[s] these dams to remain in operation.” 39 Again, this is a
mischaracterization of the limited purpose and scope of the esoteric opinions the GBRA engaged
Black & Veatch and FNI to provide. Nearly 3 years lapsed between the dam failure at Lake
Wood and subsequent dam failure at Lake Dunlap and neither the B&V Report nor any of the
35
Exhibit A.
36
Exhibit J.
37
Exhibit G.
38
Id.
39
See Patteson, supra note 30.
to drawdown the Lakes reflects assumptions based on worst-case scenarios. Modeling analysis
performed by B&V regarding a theoretical gate failure at the McQueeney Dam is premised on
the assumptions of a “simultaneous failure of all 3 gates at McQueeney…” and no time to lower
the gates at Lake Placid before the flood wave reaches the Lake Placid spillway. Even under
these circumstance, B&V only opined that the simultaneous occurrence of such events may result
in flood damage to property and possibly a few homes along the shore of Lake Placid.
54. The drawdown of the Lakes constitutes unreasonable conduct and is not
reasonably taken to fulfill any obligation mandated by state law. The GBRA does not have a
reasonable, good faith belief that the drawdown is necessary to prevent a grave and immediate
threat to life or property. The drawdown is not necessary to respond to a real and substantial
threat to public health and safety, is not designated to significantly advance a health and safety
purpose and imposes a greater burden than necessary to achieve any health and safety purpose.
55. A drawdown of the Lakes is not the only available option for ensuring public
safety and, therefore, all available less restrictive measures should be identified and exhausted
56. Accordingly, in addition to the other relief requested herein, Plaintiffs request an
injunction to maintain the “status quo” (including, without limitation, continued enforcement and
implementation of additional measures restricting access on and around the dams and Lakes)
pending further independent third-party assessments regarding future operation, repair and
replacement of the dams, as well as collaboration between the GBRA, Plaintiffs, and lake
57. Plaintiffs re-allege the facts set forth in the preceding paragraphs and incorporate
58. The GBRA’s intentional, knowing, affirmative and conscious acts, conduct and
decision described herein to draw down the Lakes constitute the inverse condemnation and
60. A “takings” claim consists of three elements: (1) an intentional act by the
government under its lawful authority; (2) resulting in a taking, damaging or destroying of
property (3) for public use. Tex. Parks & Wildlife Dep’t v. Sawyer, 354 S.W.3d 384, 390–91.
61. Plaintiffs have legally protectable private interests in Plaintiffs’ Property. The
GBRA is now intentionally depriving Plaintiffs of Plaintiffs’ Property knowing that it will
decrease property values, for which the GBRA is offering no compensation and will result in
permanent and irrevocable damage to Plaintiffs’ real property rights. As such, the GBRA’s
62. Plaintiffs re-allege the facts set forth in the preceding paragraphs and incorporate
63. Pleading further, and/or in the alternative, the GBRA’s intentional, knowing,
affirmative and conscious acts, conduct and decision described herein to draw down the Lakes
also constitute a statutory taking under Section 2007 of the Texas Government Code – The
64. Section 2007.002 of the Texas Government Code defines a “statutory taking” as
follows:
(A) a governmental action that affects private real property, in whole or in part or
temporarily or permanently, in a manner that requires the governmental entity to
compensate the private real property owner as provided by the Fifth and
Fourteenth Amendments to the United States Constitution or Section 17 or 19,
Article I, Texas Constitution; or
(i) affects an owner's private real property that is the subject of the
governmental action, in whole or in part or temporarily or permanently, in
a manner that restricts or limits the owner's right to the property that
would otherwise exist in the absence of the governmental action; and
knowing, affirmative and conscious acts, conduct and decision described herein to draw down
the Lakes and thereby inversely condemn and take Plaintiffs’ Property also constitute a statutory
plans for the dams. The GBRA’s planned conduct materially restricts and limits Plaintiffs’ real
property rights. Furthermore, the GBRA’s planned governmental actions and the results of those
actions as described throughout this pleading are a producing cause of and will result in a
diminution of at least 25 percent of the market value of Plaintiffs’ Property because of the
physical effects, restrictions, limitations and stigma associated with the drawdown of the Lakes.
67. Plaintiffs re-allege the facts set forth in the preceding paragraphs and incorporate
68. Plaintiffs bring this action for declaratory judgment under Section 2007.044 of the
69. Under Section 2007.043 of the Texas Government Code, a governmental entity
shall prepare a written takings impact assessment (“TIA”) of a proposed governmental action
which includes adopting or issuing an ordinance, rule, regulatory requirement, resolution, policy,
guideline, or similar measure. TEX. GOV’T CODE ANN. § 2007.043(a) The TIA must:
(1) describe the specific purpose of the proposed action and identify:
(A) whether and how the proposed action substantially advances its stated
purpose; and
(B) the burdens imposed on private real property and the benefits to society
resulting from the proposed use of private real property;
(2) determine whether engaging in the proposed governmental action will constitute a
taking; and
(3) describe reasonable alternative actions that could accomplish the specified
purpose and compare, evaluate, and explain:
70. The TIA must also comply with the evaluation guidelines developed by the Texas
Attorney General. Id. at § 2007.043(a). The Attorney General’s Guidelines provide, in part, that
the information and analysis included in the TIA must be accurate, concise, and of high quality.
Moreover, the Attorney General’s Guidelines emphasize that “the public is entitled to more than
mere pro forma analyses by the governmental entities covered by the Act. 40 TIAs shall serve as
the means of assessing the impact on private property, rather than justifying decisions already
made.” 41
71. The TIA must be prepared before the governmental entity provides the public
notice required under Section 2007.042. See TEX. GOV’T CODE ANN. § 2007.043. At a
minimum, the public notice described in Section 2007.042 must include a reasonably specific
summary of the TIA that was prepared and the name of the official of the political subdivision
72. A governmental action that requires a TIA is void if a TIA is not prepared. TEX.
GOV’T CODE ANN. § 2007.044. A private real property owner affected by the action “may bring
73. The GBRA’s decision to begin a systematic drawdown of the Guadalupe Valley
Lakes (starting September 16, 2019) is a “government action” as described in Section 2007.003.
In violation of Section 2007.043, Texas Government Code, no TIA was prepared or provided to
40
“Private Real Property Rights Preservation Act Guidelines,” State of Texas, Office of the Attorney General,
Internet Website, September 4, 2019. https://www2.texasattorneygeneral.gov/agency/private-real-property-rights-
preservation-act-guidelines
41
Id.
and announced by way of a GBRA press release. 42 As such, the GBRA’s decision to begin the
drawdown of the Guadalupe Valley Lakes is void under the Act as a matter of law. TEX. GOV’T
74. Plaintiffs hereby request a declaration by the Court finding that GBRA’s decision
to begin a systematic drawdown of the Guadalupe Valley Lakes (starting September 16, 2019) to
be void for the failure of the GBRA to comply with Chapter 2007 of the Texas Government
Code, together with Plaintiffs' reasonable and necessary attorneys' fees and court costs as
VIII.
APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION
75. Plaintiffs re-allege the facts set forth in the preceding paragraphs and incorporate
76. The purpose of a temporary injunction is to preserve the status quo pending trial
on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The “status quo” is
the “last, actual, peaceable, non-contested status which preceded the pending controversy. In re
Newton, 146 S.W.3d 648, 651 (Tex. 2004). Certainly, the GBRA’s decision to wait to
commence the drawdown of the Lakes until after the Labor Day holiday (a time when an
increased amount of people are present on the Lakes and exposed to risk) diminishes the
purported immediacy of the GBRA’s alleged need to drawdown the Lakes to protect public
77. Whether to grant a temporary injunction rests in the trial court’s sound discretion;
however, to obtain a temporary injunction, an applicant must plead and prove: (1) a cause of
42
See Exhibit J.
78. The GBRA has acknowledged Plaintiffs’ vested interest in the levels of the Lakes
and the adverse impact of a drawdown. The Sunset Commission likewise reported that lower
lake levels adversely affect quality of life and tax values on formerly lake front property.
Plaintiffs’ Property will be lost, damaged and destroyed by the GBRA’s intentional decision to
drawdown the Lakes up to 12 feet due to the location of the Plaintiffs’ Property on the waterfront
and the GBRA does not intend to compensate Plaintiffs. Therefore, Plaintiffs can prove the
causes of action against the GBRA set forth herein and a probable right to recovery.
warranting injunctive relief. Operation Rescue-National v. Planned Parenthood of Hous. & Se.
Tex., Inc., 937 S.W.2d 60, 77 (Tex. App.—Houston [14th Dist.] 1996), aff'd as modified, 975
S.W.2d 546 (Tex. 1998). An injunction lies before taking where it is attempted without
compensation. City of Hous. v. McCarthy, 464 S.W.2d 381, 387 (Tex. Civ. App.—Houston [1st.
80. “In Texas, the potential loss of rights in real property is a probable, imminent, and
irreparable injury that qualifies a party for a temporary injunction.” Rus–Ann Dev., Inc. v. ECGC,
Inc., 222 S.W.3d 921, 927 (Tex. App.—Tyler 2007, no pet.). An applicant seeking to prevent
irreparable injury to real or personal property does not have to prove there is no adequate remedy
81. Once the drawdown begins on September 16, 2019, Plaintiffs will be deprived of
their constitutional property rights without any reasonable expectation of compensation from the
GBRA. In fact, the GBRA’s financial reports indicate that the GBRA lacks the financial
Property. 43 See Tex. Indus. Gas v. Phoenix Metallurgical Corp. 828 S.W.2d 529, 533
drawdown will preserve the status quo and will not impose an undue burden on Plaintiffs and the
GBRA and is authorized by the language of the Private Real Property Rights Preservation Act,
83. Plaintiffs respectfully ask the Court to issue a temporary and, following a full trial
or other hearing on the merits, permanent injunction against the GBRA enjoining the GBRA
IX.
NO SOVERIGN IMMUNITY
84. Plaintiffs re-allege the facts set out in the preceding paragraphs and incorporate
85. Because the constitutional claims asserted against the GBRA are claims for
inverse condemnation and the unconstitutional “taking” of Plaintiffs’ real and personal property
immunity does not apply here and does not deprive this Court of subject matter jurisdiction over
all of the claims asserted and set forth herein. See, e.g., Harris Cty. Flood Control Dist. v. Kerr,
499 S.W.3d 793, 799 (Tex. 2016) (“Sovereign immunity does not shield the government from
liability for compensation under the takings clause.”); Ahmed v. Metro. Transit Auth., 257
S.W.3d 29, 32 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“Article I, section 17 of the
Texas Constitution waives immunity from suit and liability in inverse condemnation cases and
43
See Exhibit E; see also GBRA, Comprehensive Annual Financial Report (Seguin: Guadalupe-Blanco River
Authority, 2017), 21; https://www.gbra.org/documents/publications/annualreports/2017.pdf.
from suit or liability in connection with the constitutional claims asserted against it herein.
86. Similarly, because the alternative or additional statutory claims asserted against
the SJRA are expressly authorized by Section 2007 of the Texas Government Code, the GBRA
also has no immunity from suit or liability in connection with the statutory claims asserted
against it herein. See Hidalgo Cty. v. Dyer, 358 S.W.3d 698, 705 (Tex. App.—Corpus Christi-
Edinburg 2011, no pet.) (Section 2007.004(a) of the Texas Government Code “waives sovereign
X.
DAMAGES AND INVALIDATION OF THE DRAWDOWN
87. Plaintiffs re-allege the facts set out in the preceding paragraphs and incorporate
88. By virtue of the foregoing intentional, knowing, affirmative and conscious acts,
conduct and decisions set forth herein, Plaintiffs alternatively, or additionally, to their requests
for injunctive and declaratory relief, seek recovery of adequate compensation and fair value for
their property “taken” in violation of Article I, Section 17 of the Texas Constitution and in
violation of those sections of Chapter 2007 of the Texas Government Code referenced above,
and the invalidation and rescission of the drawdown, including the following:
• Cost of replacement or fair market value for Plaintiffs’ real property lost,
damaged, destroyed or “taken” by the intentional, knowing, affirmative and
conscious acts, conduct and decisions set forth herein;
• Cost of replacement or fair market value for Plaintiffs’ personal property lost,
damaged, destroyed or “taken” by the intentional, knowing, affirmative and
conscious acts, conduct and decisions set forth herein;
• Cost of repair for Plaintiffs’ real property lost, damaged, destroyed or “taken” by
the intentional, knowing, affirmative and conscious acts, conduct and decisions
set forth herein;
• Loss of use of Plaintiffs’ real property lost, damaged, destroyed or “taken” by the
intentional, knowing, affirmative and conscious acts, conduct and decisions set
forth herein;
• Loss of income;
• Reasonable and necessary attorneys’ fees and court costs pursuant to Section
2007.026(a) and Section 2007.44(c) of the Texas Government Code;
• Pre-judgment interest;
• Costs of court.
XI.
CONDITIONS PRECEDENT
89. All conditions precedent to Plaintiffs’ right to recover and to the GBRA’s liability
have been performed or have occurred and/or have been waived by the GBRA.
90. Plaintiffs hereby place the GBRA on notice that Plaintiffs intend to use any
XIII.
JURY DEMAND
91. Plaintiffs request and demand a trial by jury under Article I, Section 15 of the
Texas Constitution and tender the appropriate fee with this Original Petition.
XIV.
REQUEST FOR DISCLOSURE
92. Plaintiffs request that the GBRA disclose the information and materials described
XV.
PRAYER
ROBERT L. WORTH, JR., PETER BADGER, ROBERT SIMS, JOHN EWALD and JIM C.
DANIELL, respectfully request and pray that Defendant, Guadalupe-Blanco River Authority, be
cited to answer and appear herein and ask that the Court:
• Grant a temporary order enjoining the GBRA, during the pendency of a full trial or
other hearing on the merits, from drawing down the Lakes;
• After a full trial or other hearing on the merits, grant a permanent order enjoining
the GBRA from drawing down the Lakes;
• Grant Plaintiffs such other and further relief to which they may show themselves
justly entitled.
Respectfully submitted,