the City of El Paso, Texas v. Mazie's, L.P. and Whitney Properties, L.P., 408 S.W.3d 13

Coronado Country Club area drainage system diverted floodwaters into a city drainage network; City owns and maintains the dam and system.
Dr. Walton, a civil engineer, warned in 2004 that the drainage system could fail in a large storm and that FEMA design flows were undersized.
Walton’s letter identified property at risk near Mesa Street and suggested engineering studies and design corrections.
June–August 2006 rainfall caused severe flooding including destruction of Blockbuster and other properties owned by Mazie’s L.P. and Whitney Properties, L.P.
Appellees filed nuisance and takings claims under Tex. Const. art. I, §17 and a Fifth Amendment takings claim; City moved for plea to the jurisdiction; trial court denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellees stated a valid takings claim based on construction/operation of the drainage system	Appellees allege construction, operation and maintenance damaged property.	City argues maintenance/operation insufficient; relies on Arlington precedent.	Yes; pleadings show construction/operation caused damage and support a taking.
Whether City knew a specific act would cause identifiable harm or damage was substantially certain	Walton letter and expert affidavits show knowledge of substantial certainty.	City claims no such knowledge.	Fact issue exists; knowledge shown; sub-issue overruled.
Whether a failure to act can constitute a taking	Alleged policy of diverting floods after warnings caused harm.	Failure to act alone cannot be a taking.	Failure to act not the basis; takings alleged from construction/operation; sub-issue overruled.
Whether the taking was for public use	City’s actions benefitted some property owners at others’ expense; Walton affirms purpose to prioritize newer developments.	No intentional public-use plan to favor some properties.	Fact issue exists on public-use element.
Whether flood recurrence is required for pleading a takings claim and whether Fifth Amendment claim survives	Recurrence not strictly pleading; reliance on Gragg/Doss approach; Fifth Amendment claimed.	Recurrence required; argues against Fifth Amendment claim.	Recurrence not pleading prerequisite; Fifth Amendment claim viable; issues resolved against City.

City of Dallas v. Jennings, 142 S.W.3d 310 (Tex. 2004) (defines taking, damaging, destruction under Art. I, §17; identifies intent as key factor)
Hidalgo County Water Improvement District No. 2 v. Holderbaum, 11 S.W.2d 506 (Tex. Com. App. 1928) (early takings construction/dam maintenance framework)
City of Arlington v. State Farm Lloyds, 145 S.W.3d 165 (Tex. 2004) (maintenance/operation alone not takings taking; requires specific act or substantial certainty)
Collision Center of Addison, Inc. v. Town of Addison, 310 S.W.3d 191 (Tex. App.--Dallas 2010) (maintenance/operation issue; whether intentional act caused damage; distinguishes pleading vs. evidence context)
Gragg v. Turner? (Tarrant Regional Water District v. Gragg), 151 S.W.3d 546 (Tex. 2004) (recurrence probative in flood-takings; clarifies pleading vs. merits; supports recurrence analysis)