Supreme Court of Texas Update: Harris Cnty. Flood Control Dist. v. Kerr

Supreme Court of Texas

Supreme Court of Texas

Harris Cnty. Flood Control Dist. v. Kerr

No. 13-0303

Case Summary written by Allison Grayson, Online Edition Editor.

JUSTICE DEVINE delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE GREEN, JUSTICE GUZMAN, and JUSTICE BOYD joined.

More than 400 residents and homeowners in Harris County experienced flooding during “Tropical Storm Francis in 1998, Tropical Storm Allison in 2001, and an unnamed storm in 2002.” In response to the flooding, the homeowners blamed “Harris County and Harris County Flood Control District, asserting that they approved new upstream development without implementing appropriate flood-control measures, and that they were substantially certain flooding would result.”

In 1976, the U.S. Army Corps of Engineers created a report looking at recurrent damaging floods in the White Oak Bayou. While the problem mainly came from the “inadequate channel capacities of the streams[,]” increasing suburban development furthered the problem. In response to these problems, the Army Corps of Engineers recommended changes to reduce any flooding in the future.

The government entities agreed to take charge of the project, where they hoped to “maintain or reduce the bayou’s 100-year flood plain.” Although the federal government was responsible for funding much of the project, the funding did not keep pace with new development in the area. Many of the new homes constructed “were not in the 100-year flood plain when built or approved.”

In response to the delay in funding, Harris County officials developed their own plan. In 1984, the county adopted the “Pate Plan” to eliminate flooding.

After experiencing a flood, residents in the area asked about the county’s flood control measures. Discovering flaws in the Pate Plan, the flood control district commissioned another report, which the government entities later adopted in the 1990s.

By 1999, the residents argued that “all of their homes were within the 100-year flood plain[,]” which was evident from three successive floods that occurred between 1998 and 2002. Based on these facts, the homeowners in the area filed an inverse condemnation suit. Subsequently, the government entities filed a plea to the jurisdiction and motion for summary judgment. “The trial court denied the motion, and the court of appeals affirmed the denial of the plea to the jurisdiction.”

Issue: Whether “homeowners raised a fact question as to the elements of a taking.”

Here, the Court explained that in a takings case, showing that the act in question was intentional is not enough. Instead, “there must also be knowledge to a substantial certainty that the harm will occur.”

In this instance, the Court determined that a fact question existed as to “whether the government entities were substantially certain their actions in approving development without appropriately mitigating it would cause the plaintiffs’ homes to flood.” Further, the Court explained that no evidence existed to show that the government entities were substantially certain the flooding would occur when they approved the development. Therefore, the Court held that the homeowners raised a fact question concerning the intent of the government entities.

Additionally, a study suggested that a fact question existed as to whether the approval of the development caused the flooding of the homeowners’ homes. Moreover, the Court determined that at “least some evidence [existed] that in approving new development and drainage plans causing flooding, the entities’ were acting for a public use.”

Based on the determination that fact questions still existed in this case, the Court denied the government entities’ plea to the jurisdiction and affirmed the decision by the court of appeals.

JUSTICE WILLETT, joined by JUSTICE JOHNSON, JUSTICE LEHRMANN, and JUSTICE BROWN, dissenting.

Justice Willett dissented because he did not believe the homeowners presented a cognizable takings claim. Further, he explained that the majority’s decision would “encourage governments to do nothing to prevent flooding, rather than studying and addressing the problem.” Additionally, Justice Willett wrote that the majority opinion left out other important elements required for a takings claim, including: affirmative conduct, specificity, and public use.

Justice Willett also discussed the fact that the Takings Clause and sovereign immunity often conflict in situations such as this one. Explaining his position, he stated that “[w]hile the right to compensation for a taking is constitutionally mandated, sovereign immunity is also a matter of constitutional significance.”

Ultimately, Justice Willett wrote that he was concerned the Court’s decision “unnecessarily expand[ed] taking liability.” Further, he argued that the decision could “make the government an insurer for all manner of natural disasters and inevitable man-made accidents.”

JUSTICE LEHRMANN, joined by JUSTICE WILLET, dissenting.

Justice Lehrmann wrote separately to further discuss “the availability of compensation when a taking occurs, regardless of whether it is for public or private use.” She explained that the Court has never “held that a taking that fails to satisfy the public-use element is not compensable.” When the government takes private property without paying the owner for it, “the owner may recover damages for inverse condemnation.”

Back to top