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Vol. No. 56-2 Water Rights

September 29, 2026

By Emily Rogers and Chloe Fisher

Introduction

During Hurricane Harvey in 2017, the San Jacinto River Authority (SJRA) released water from its Lake Conroe reservoir into a portion of the San Jacinto River.1 Downstream property owners alleged their properties flooded as a result, asserting takings claims against SJRA under the Private Real Property Rights Preservation Act (the Act).2 The Court of Appeals held in favor of SJRA, reversing the trial court’s denial of SJRA’s plea to the jurisdiction and dismissing the plaintiffs’ statutory takings claim.3 This decision is likely to affect private property owners in Texas bringing statutory takings claims under the Act arising out of dam management during weather emergencies.

The Private Real Property Rights Preservation Act

The Private Real Property Rights Preservation Act authorizes private property owners to sue to determine whether a governmental action of a political subdivision results in a “taking” under Texas law.4 The Act defines “taking” to include governmental actions (1) affecting private real property that are compensable under the state or federal constitutions or (2) resulting in a reduction of at least 25% of market value of the affected real private property.5

Private property owners who succeed in obtaining “takings” determinations are entitled to judgment invalidating the governmental action at issue, including an assessment for money damages suffered and attorney’s fees.6 However, the Act does not require the governmental entity to pay those damages in all situations.7 Rather, the Act expressly provides governmental immunity for many categories of governmental action.8

Notably, one category of action triggering exclusion from payment based on governmental immunity is found in § 2007.003(b)(7) of the Act: “an action taken out of a reasonable good faith belief that the action is necessary to prevent a grave and immediate threat to life or property.”9 Though the Court of Appeals previously considered the applicability of this exclusion based on the pleadings, the Court had not previously considered § 2007.003(b)(7)’s general meaning or applied it to evidence.10 Chapter 2007 does not define the terms in § 2007.003(b)(7).11

San Jacinto River Authority v. Ross: An Overview

Created in 1937, SJRA is a political subdivision and a conservation and reclamation district of the State of Texas.12 SJRA’s responsibilities include “storing, controlling, and conserving storm and floodwaters of the San Jacinto River and its tributaries.”13 SJRA operates and maintains the dam across the West Fork of the San Jacinto River.14

Hurricane Harvey made landfall near Port Aransas on August 25, 2017, before re-entering the Gulf.15 As Harvey returned inland, its forward motion nearly stagnated, with the storm moving just five miles per hour.16 Severe flash flooding occurred through much of Harris and Montgomery Counties.17 On August 27, 2017, SJRA began releasing storm waters from Lake Conroe to the West Fork of the San Jacinto River.18 Many property owners in the Kingwood and Humble areas experienced devastating flooding.19 Following Harvey, the appellees (the Property Owners) sued SJRA in Harris County district courts, alleging that SJRA’s water release “inundated their properties with water and caused substantial damage.”20 The Property Owners asserted takings claims under the Texas Constitution and the Act.21 However, the Property Owners’ statutory takings claims under § 2007.003 of the Act were the only claims at issue for the purposes of this appeal.22

The Court’s Decision in Ross to Exempt SJRA from Takings Liability

SJRA argued that the trial court erred in denying its plea to jurisdiction in part because its actions were exempt from takings liabilities under § 2007.003(b)(7)’s emergency exclusion. In its analysis, the Court of Appeals began by defining the words of § 2007.003(b)(7) by looking to their ordinary meanings.23 The Court’s definitions are as follows:

“Action”

The term “action” refers to the challenged act or acts put into issue by the plaintiffs’ pleadings.24

“Reasonable Good Faith”

The term “reasonable good faith”—as applied to a dam operator like SJRA—means that “the governmental entity believed that the challenged action was necessary to prevent a grave and immediate threat to life or property, and that its belief was objectively reasonable under the circumstances when viewed from the perspective of a reasonable dam operator.”25

“Necessary”

The word “necessary” includes something that is essential or needed for some purpose.26

“Grave and Immediate”

“Grave” means “likely to produce great harm or danger” or “significantly serious.”27 “Immediate” means “near to or related to the present” or “of or relating to the here and now.”28

Application

Mindful of these definitions, the Court considered whether the record established the exclusion. The Court looked to SJRA employee testimonies in the record on risk, adherence to floodgate policy, and goals when releasing water from the lake; hydrology expert testimony; and engineering expert testimony in making its determination.29

The Court held that SJRA met its burden to establish the exclusion.30 The Court first examined whether Harvey presented a “grave and immediate threat.” It pointed to uncontroverted evidence filed by the Property Owners that illustrated Harvey’s severity, including that, according to the Harris County Flood Control District’s final report, four-day rainfall totals over the Kingwood area were likely to occur only once every 2,000-5,000 years.31 Given this evidence, the Court concluded that Harvey presented a grave and immediate threat to life and property.32

Next, the Court examined whether SJRA presented evidence (1) that it believed that releasing water in accordance with its floodgate policy was necessary to prevent the threat posed and, if so, (2) whether its belief was objectively reasonable. Here, the Court looked to SJRA’s general manager’s testimony on its intent and objectives when deciding to release water during storm events, as outlined in the organization’s floodgate policy.33 Given that the floodgate policy was designed to reduce downstream flooding, comport with applicable laws, and ensure that the dam does not fail or cause catastrophic flooding downstream, the Court determined that SJRA had the requisite belief.34 The Court then concluded that SJRA’s belief was objectively reasonable, given that, generally, “governmental entity’s actions taken with intent to comply with valid laws and legal authority are objectively reasonable.”35

The Court rejected the Property Owners’ argument that fact questions existed as to whether SJRA reasonably and in good faith believed that releasing the water was necessary to prevent a grave and immediate threat to life or property.36 Specifically, the Court noted that the Property Owners’ allegations regarding SJRA’s (1) intent to avoid upstream flooding; (2) failure to meet floodgate policy goals; (3) reliance on a case the Property Owners contend was decided incorrectly and that the Court had declined to follow; and (4) release of more water than essential did not present fact issues.37

Consequently, the Court concluded that the § 2007.003(b)(7) exclusion applied. Given that the exclusion applied, the Court held that the trial court erred in denying SJRA’s plea to the jurisdiction.38 The Court reversed the trial court’s order and rendered judgment dismissing the Property Owners’ statutory takings claims under § 2007.003(b)(7), with prejudice.39

The Impact of the Court of Appeals’ Decision in Ross

Though the Court’s holding is binding only within its jurisdictional limits, the decision has statewide implications on statutory takings liability arising under the Act out of dam management during weather emergencies. The decision provides insight into how other appellate courts or the Supreme Court of Texas might construe § 2007.003(b)(7) following similar claims. It may therefore be harder for private property owners to receive compensation under § 2007.003(b)(7), as the Court in Ross was reluctant to find fact issues in the face of expert and employee testimony showing a reasonable good faith belief that releasing the water was necessary to prevent a grave and immediate threat to life or property.

 

Emily Rogers is the managing partner at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of water and environmental law. She has extensive experience representing cities, river authorities, and water districts in matters involving surface and groundwater rights, water and wastewater utility matters, and industrial and municipal solid waste disposal cases. Emily earned her B.A. in History from the University of Texas, her M.A. in History from Southwest Texas State University, and her J.D. from the University of Houston Law Center.

Chloe Fisher is a recent graduate of the University of Texas School of Law. Chloe is from Houston, Texas, and she received her B.A. in Sustainability Studies & Philosophy from UT Austin. She joined TELJ during her first year of law school and served as Editor-in-Chief of Volume 56.

 

  1. San Jacinto River Auth. v. Ross, No. 14-23-00923-CV, 2025 WL 2934051, at *1 (Tex. App.—Houston [14th Dist.] Oct. 16, 2025, no pet. filed.).
  2. Id. at *2.
  3. Id. at *16.
  4. Tex. Gov’t Code § 2007.021(1).
  5. Id. § 2007.002(5).
  6. See San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 622 (Tex. 2021) (citing Tex. Gov’t Code §§ 2007.006(a), 2007.021, 2007.023(b), 2007.024(b), 2007.026(a)).
  7. Tex. Gov’t Code § 2007.024(c).
  8. Id. § 2007.003(b).
  9. Id. § 2007.003(b)(7).
  10. Ross, 2025 WL 2934051, at *4 (citing Medina, 627 S.W.3d, at 628–31).
  11. Id. at *5.
  12. Id. at *1 (citing Medina, 627 S.W.3d at 621).
  13. Id. (citing Medina, 627 S.W.3d at 621) (internal quotes omitted).
  14. Id.
  15. Ross, 2025 WL 2934051, at *1.
  16. Id.
  17. Id.
  18. Id.
  19. Id.
  20. Id. at *2.
  21. Id.
  22. Id.
  23. Id. at *5.
  24. Ross, 2025 WL 2934051, at *5.
  25. Id. at *6.
  26. Id.
  27. Id. (quoting Grave, Merriam-Webster Online Dictionary (2026), https://www.merriam-webster.com/dictionary/grave [https://perma.cc/F85Y-55E2]).
  28. Id.
  29. Ross, 2025 WL 2934051, at *6–*9.
  30. Id.
  31. Id. at *9.
  32. Id. at *10.
  33. Id.
  34. Id.
  35. Ross, 2025 WL 2934051, at *10 (citing City of Houston v. Newsom, 858 S.W.2d 14, 18 (Tex. App.—Houston [14th Dist.] 1993, no writ); Aacen v. San Juan Cnty. Sheriff’s Dep’t, 944 F.2d 691, 701 (10th Cir. 1991)).
  36. Ross, 2025 WL 2934051, at *13.
  37. Id. at *13–*15.
  38. Id. at *16.
  39. Id.