herein seek, among other things, recovery of damages to real property located in Guadalupe

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

is located in Guadalupe County, Texas. See TEX. GOV’T CODE § 2007.021(a).

VI.
STATEMENT OF FACTS

A. THE PURPOSE AND POWERS OF THE GBRA INCLUDES THE AUTHORIZATION TO

MAINTAIN ITS OWN DAMS.

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

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 6 OF 29

 and functions concerning the subject matter of this amendment as may be
conferred by law.

(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

hydroelectric power. TEX. WATER CODE § 51.121(b)(1), (3).

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

and Refugio counties.” 4

3
https://gbra.org/about/default.aspx
4
https://www.gbra.org/maps/basin.aspx

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 7 OF 29

 25. The GBRA owns and operates the Guadalupe Valley Hydroelectric System

(“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

plans for each of the dams to avoid dam failure.

B. 2016 SPILL GATE FAILURE AT LAKE WOOD DAM.

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.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 8 OF 29

recommended replacement of all locking bars and tie bars to preclude loss of another gate

anywhere throughout the GBRA system.

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

these dams was imminent.

C. SUNSET ADVISORY COMMISSION REPORT – SEPTEMBER 2018.

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

Commission”). The Sunset Commission is required to evaluate river authorities’ governance,

management, operational structure, and compliance with legislative requirements.

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:

• The GBRA has not implemented a comprehensive asset management process to

ensure timely repair and replacement of its significant utility assets [including the
spill gates in the dams located on the Lakes], leading to failed infrastructure and
potential service disruptions;

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.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 9 OF 29

 • The GBRA’s communication strategies are not well-coordinated with asset
management and operations, which may limit sensitive and timely messaging
regarding asset needs to local communities;

• GBRA’s procurement and contracting systems lack clear central oversight and
coordination to ensure consistent, efficient operations;

• GBRA’s approach to certain procurement and contract management activities

does not conform to typical best practices;

• 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.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 10 OF 29

 D. GBRA AUTHORIZES MILLIONS IN EXPENDITURES TO NON-PROFITS AND THE
CONSTRUCTION OF A NEW OFFICE BUILDING IN LIEU OF FUNDING THE REPAIR
AND REPLACEMENT OF THE DAMS.

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

million office complex in New Braunfels.

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

No. 2 at Lake Dunlap Dam failed.

12
Exhibit E, p. 13.
13
Id., p. 10.
14
Id., p. 23.
15
Exhibit F.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 11 OF 29

 37. In a May 16, 2019 press release, Mr. Patteson, stated that the “GBRA is

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

lake level elevations.” 18

F. GBRA COMMISSIONS THE VISUAL INSPECTION OF A SINGLE HINGE FROM THE

LAKE DUNLAP DAM

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

from Gate No. 1 which had not failed.

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.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 12 OF 29

service.” 21 However, the B&V Report is not peer-reviewed and B&V states that its opinions “are

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.

G. GBRA USES THE B&V REPORT TO UNILATERALLY SHIFT THE FINANCIAL

CONSEQUENCES OF THE GBRA’S INACTION TO PROPERTY OWNERS.

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

B&V in its August 13 report. 24

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.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 13 OF 29

for a sustainable business model.” 25 As Mr. Hickman publicly stated: “The future of these lakes

is recreation. Right now it’s just not profitable.” 26

44. The GBRA admitted in a self-evaluation report submitted to the Sunset

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

45. More significantly, GBRA’s executive manager of engineering, Charlie Hickman,

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.

H. GBRA’S MEDIA CAMPAIGN TO MANUFACTURE AN “IMMINENT” EMERGENCY

TO DEFEND THE DRAWDOWN OF THE LAKES.

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.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 14 OF 29

public safety. GBRA General Manager and CEO, Kevin Patteson, even implies in his opinion

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

steel components at each of the dams are compromised.” 33 However, this is a

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

dams in the system are no longer adequate for continued service.” 34

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).

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 15 OF 29

visual inspection of Spillgate No. 2 at TP-4 (Lake Placid) Dam and reported to the GBRA on

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

(FEM) structural analysis. 35

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

of hydraulic crest gates. 38

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

FNI reports explicitly state that a future dam failure is “imminent.”

35
Exhibit A.
36
Exhibit J.
37
Exhibit G.
38
Id.
39
See Patteson, supra note 30.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 16 OF 29

 53. Finally, B&V’s own analysis in the months leading up to the GBRA’s declaration

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.

I. LESS RESTRICTIVE ALTERNATIVES AND MAINTAINING THE “STATUS QUO.”

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

before Plaintiffs are irreparably deprived of their constitutional rights.

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

associations regarding enactment and funding for the same.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 17 OF 29

 VII.
CAUSES OF ACTION

A. CAUSE OF ACTION NO. 1: INVERSE CONDEMNATION AND UNCONSTITUTIONAL

TAKING OF PLAINTIFFS’ REAL AND PERSONAL PROPERTY IN VIOLATION OF
ARTICLE I, SECTION 17 OF THE TEXAS CONSTITUTION.

57. Plaintiffs re-allege the facts set forth in the preceding paragraphs and incorporate

those allegations by reference below as if fully set forth verbatim.

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

unconstitutional taking (permanent and temporary) of Plaintiffs’ Property in violation of Article

I, Section 17 of the Texas Constitution.

59. Article I, Section 17 of the Texas Constitution provides as follow:

“No person’s property shall be taken, damaged, or destroyed, for or

applied to public use without adequate compensation being made,
unless by the consent of such person…”

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.

(Tex. 2011). All three elements are present here.

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

conduct detailed above constitutes a temporary and permanent unconstitutional taking.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 18 OF 29

 B. CAUSE OF ACTION NO. 2: STATUTORY TAKING UNDER SECTION 2007 OF THE
TEXAS GOVERNMENT CODE.

62. Plaintiffs re-allege the facts set forth in the preceding paragraphs and incorporate

those allegations by reference below as if fully set forth verbatim.

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

Private Real Property Rights Preservation Act (the “Act”).

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

(B) a governmental action that:

(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

(ii) is the producing cause of a reduction of at least 25 percent in the market

value of the affected private real property, determined by comparing the
market value of the property as if the governmental action is not in effect
and the market value of the property determined as if the governmental
action is in effect.

65. In addition to constituting constitutional takings, the GBRA’s intentional,

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

taking under Section 2007.002(A) of the Texas Government Code.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 19 OF 29

 66. The GBRA intentionally failed for years to implement repair and replacement

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.

As such, the GBRA’s conduct detailed above constitutes a statutory taking.

C. CAUSE OF ACTION NO. 3: REQUEST FOR DECLARATORY JUDGMENT THAT

GBRA’S FAILURE TO PERFORM TAKINGS IMPACT ASSESSMENT INVALIDATES
GOVERNMENT ACTION TO DRAWDOWN THE LAKES.

67. Plaintiffs re-allege the facts set forth in the preceding paragraphs and incorporate

those allegations by reference below as if fully set forth verbatim.

68. Plaintiffs bring this action for declaratory judgment under Section 2007.044 of the

Texas Government Code.

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:

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 20 OF 29

 (A) how an alternative action would further the specified purpose; and
(B) whether an alternative action would constitute a taking.

TEX. GOV’T CODE ANN. § 2007.043(b).

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

from whom a copy of the full assessment may be obtained. Id.

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

suit for a declaration of the invalidity of the governmental action.” Id.

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.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 21 OF 29

Plaintiffs in connection with the above-described action before or after the decision was made

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

CODE ANN. § 2007.044

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

prescribed by Sections 2007.026 and 2007.044(c) of the Texas Government Code.

VIII.
APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION

75. Plaintiffs re-allege the facts set forth in the preceding paragraphs and incorporate

those allegations by reference below as if fully set forth verbatim.

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

safety in lieu of maintaining the current “status quo.”

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.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 22 OF 29

action against the defendants; (2) a probable right to the relief sought; and (3) a probable,

imminent and irreparable injury in the interim. Buntaru, 84 S.W.3d at 204.

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.

79. Violation of a constitutionally guaranteed right inflicts irreparable injury

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.

Dist.] 1971, writ ref’d n.r.e.).

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

at law. TEX. CIV. PRAC. & REM. CODE § 65.011(5).

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

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 23 OF 29

resources to adequately compensate Plaintiffs for the GBRA’s intentional taking of Plaintiffs’

Property. 43 See Tex. Indus. Gas v. Phoenix Metallurgical Corp. 828 S.W.2d 529, 533

(Tex.App.—Houston [1st. Dist.] 1992, no writ).

82. A temporary injunction against the enforcement and implementation of the

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,

Section 2007.001, et seq. of the Texas Government Code.

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

from drawing down the Lakes.

IX.
NO SOVERIGN IMMUNITY

84. Plaintiffs re-allege the facts set out in the preceding paragraphs and incorporate

those allegations by reference below as if fully set forth verbatim.

85. Because the constitutional claims asserted against the GBRA are claims for

inverse condemnation and the unconstitutional “taking” of Plaintiffs’ real and personal property

in violation of Article I, Section 17 of the Texas Constitution, the doctrine of sovereign

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.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 24 OF 29

authorizes compensation for such constitutional taking.”). Thus, the GBRA has no immunity

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

immunity from suit and liability to the extent it creates liability.”).

X.
DAMAGES AND INVALIDATION OF THE DRAWDOWN

87. Plaintiffs re-allege the facts set out in the preceding paragraphs and incorporate

those allegations by reference below as if fully set forth verbatim.

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;

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 25 OF 29

 • Cost of repair for Plaintiffs’ personal 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 use of Plaintiffs’ personal property lost, damaged, destroyed or “taken” by

the intentional, knowing, affirmative and conscious acts, conduct and decisions
set forth herein;

• Diminution in value of Plaintiffs’ real property lost, damaged, destroyed or

“taken” by the intentional, knowing, affirmative and conscious acts, conduct and
decisions set forth herein;

• Diminution in value of Plaintiffs’ personal property lost, damaged, destroyed or

“taken” by the intentional, knowing, affirmative and conscious acts, conduct and
decisions set forth herein;

• Loss of income;

• Consequential costs incurred, such as cost of alternative accommodations;

• Invalidation and rescission of the GBRA’s drawdown;

• 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;

• Post-judgment interest; and

• 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.

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 26 OF 29

 XII.
PRODUCTION OF DOCUMENTS

90. Plaintiffs hereby place the GBRA on notice that Plaintiffs intend to use any

document produced by the GBRA for any pretrial proceeding or at trial.

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

in Rule 194.2 of the Texas Rules of Civil Procedure.

XV.
PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs, KEVIN SKONNORD, KEITH

C. STRIMPLE, CLARK P. WELDON, RAYMOND THOMAS, GRANT MCFARLAND,

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;

• A declaration that the GBRA’s decision to begin a systematic drawdown of the

Guadalupe Valley Lakes (starting September 16, 2019) is invalid and that GBRA
must rescind its action;

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 27 OF 29

 • Grant judgment against Defendant for the relief requested herein and for adequate
compensation and damages to Plaintiffs and invalidation and rescission of the
drawdown of the Lakes as set forth above; and

• Grant Plaintiffs such other and further relief to which they may show themselves
justly entitled.

Respectfully submitted,

McCombs Plaza, Suite 500

755 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone No.: (210) 822-6666
Telecopier No.: (210) 822-1151

By: /s/Ricardo G. Cedillo

RICARDO G. CEDILLO
Texas State Bar No. 04043600
rcedillo@lawdcm.com
LESLIE J. STREIBER, III.
Texas State Bar No. 19398000
BRIAN L. LEWIS
Texas State Bar No. 24060166
blewis@lawdcm.com
BRANDY C. PEERY
Texas State Bar No. 24057666
bpeery@lawdcm.com

ATTORNEYS FOR PLAINTIFFS

PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF PAGE 28 OF 29