405 S.W.3d 776
Tex. App.2013Background
- TMPA sought to raise SP-50 water level on its land, requiring an impoundment easement and flood easement on Johnston’s property and access for surveys.
- TMPA’s April 26, 2012 letter urged Johnston’s cooperation and warned that withholding consent could lead to legal remedies, including entry, a declaratory judgment of TMPA’s right to enter, and attorney’s fees.
- Johnston previously declined access for surveys and inspections related to TMPA’s proposed easement.
- On May 2, 2012, Johnston filed a petition seeking temporary and permanent injunctive relief to stop TMPA from accessing or condemning his land.
- TMPA had not yet obtained Board authorization for condemnation; 2206.053(a)(1) requires such authorization at a public meeting by record vote before initiating condemnation.
- The trial court denied TMPA’s plea to the jurisdiction; TMPA appealed, arguing lack of a justiciable controversy and governmental immunity defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there a justiciable controversy ripe for decision? | Johnston—contingent actions invoke condemnation and injunctive relief now. | TMPA—no ripe controversy because Board has not authorized condemnation and no present injury. | Not ripe; no justiciable controversy |
| Does governmental immunity bar Johnston’s claims? | Johnston—claims fall outside immunity due to constitutional rights and statutory violations. | TMPA—immune unless waiver; no waiver shown. | Immunity not reached due to not ripe; dismiss |
Key Cases Cited
- City of Anson v. Harper, 216 S.W.3d 384 (Tex. App.—Eastland 2006) (ripeness; future permit approvals not ripe)
- United Somerset Corp. v. Harris Cnty. Mun. Dist. No. 156, 274 S.W.3d 133 (Tex. App.—Houston [1st Dist.] 2008) (ripeness; concrete injury not present yet)
- Gibson v. Waco Indep. Sch. Dist., 22 S.W.3d 849 (Tex. 2000) (ripeness focuses on concrete injury vs. future events)
- Lone Star Gas Co. v. City of Fort Worth, 98 S.W.2d 799 (Tex. 1936) (injunctions where eminent domain is void)
- Texas Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379 (Tex. App.—Fort Worth 2008) (ripe declaratory relief when eminent domain is imminent)
- Koch v. Texas Gen. Land Office, 273 S.W.3d 451 (Tex. App.—Austin 2008) (constitutional taking immunity considerations)