Harris County Flood Control District v. Kerr, 499 S.W.3d 793

Plaintiffs are about 400 homeowners in the upper White Oak Bayou watershed in Harris County who suffered flood damage during Tropical Storm Francis (1998), Tropical Storm Allison (2001), and a 2002 storm.
The Harris County Flood Control District and Harris County (the County) were sued for inverse condemnation a takings claim based on alleged approval of unmitigated upstream development and failure to fully implement the Pate Plan.
The District created to control floodwaters, with the County as its governing body, pursued a flood-control plan (Pate Plan) adopted in 1984, funded locally, and intended to eliminate the 100-year flood in parts of the watershed.
The Pate Plan was never fully implemented; later Klotz Associates (1990) proposed a different approach focusing on smaller (10-year) floods, reframing the flood-control strategy.
Homeowners’ experts argued that unmitigated development plus partial or delayed plan implementation caused their floods; the County argued it never intended to flood or to use particular homeowners’ parcels for detention.
The trial court denied summary judgment; the appellate court affirmed, and rehearing was granted; the Texas Supreme Court ultimately reversed and dismissed, finding no cognizable taking.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the County’s affirmative acts caused a taking.	Homeowners claim County approved unmitigated development causing floods.	County did not intend to flood; action not a taking; lack of specific causation.	No cognizable taking; no proof of intent to damage specific properties.
Whether the County’s conduct meets the public-use element.	Approval of private development used for public benefit constitutes public use.	No specific, identifiable public-use taking; approval alone not public use.	Public-use not satisfied; governing actions did not target homeowners’ parcels.
Whether the homeowners proved substantial certainty that specific homes would flood.	Recurrence and expert testimony show substantial certainty of flooding to specific parcels.	No substantial certainty tied to particular homes; evidence shows general risk.	Not proven; standing requirement for taking not met.

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (public-use and intent elements in inverse condemnation; distinguishable facts)
Kopplow Development, Inc. v. City of San Antonio, 399 S.W.3d 532 (Tex. 2013) (recurrence as a factor in intent and taking extent in flood-water impacts)
Gragg v. Tarrant Reg’l Water Dist., 151 S.W.3d 546 (Tex. 2004) (recurrence as probative of intent and taking extent in flood cases)
City of Dallas v. Jennings, 142 S.W.3d 310 (Tex. 2004) (intent requires knowledge that harm is substantially certain to result)
City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (timing of knowledge determined as of the act, not hindsight)
Maher v. Lasater, 163 Tex. 356, 354 S.W.2d 923 (Tex. 1962) (private taking considerations; public-use framing)