DISSENTING OPINION The residents of Robinson benefit from a municipal sewage system. Gabriel and Irene Rodriguez contend that they are being forced to endure periodic inundation of their home by that system which has not only directly caused them damage by back-flowing raw sewage into their home, but has also occurred so often that it has permanently damaged the value thereof; and as a result, their property has been taken/damaged by the City of Robinson for the benefit of its residents. The question is whether the City of Robinson is going to be required to pay for the damages the City’s sewer system has caused Gabriel and Irene. The Texas Constitution says that the City is not immune from a suit for causing damage to Gabriel and Irene for a government service that benefits the City’s residents. The Court’s holding takes that right away. I disagree. Accordingly I would affirm the trial court’s denial of the City’s plea to the jurisdiction. As indicated, this proceeding is not yet about the merits of the claims. It is about whether Gabriel and Irene are even going to have an opportunity to prove their claim in a Texas courtroom. The trial court determined they were entitled to pursue that claim. Established precedent from this Court also holds that Gabriel and Irene should have their day in court and not be dismissed based on governmental immunity. In 1993 this Court stated: Because fact questions exist about what caused the backup, whether the City intentionally or negligently failed to correct the cause of the backup, whether the condition rose to the level of a nuisance, whether the City intended to take acts which resulted in the taking, damaging, or destruction of any interest in the property, the City has failed to meet its summary-judgment burden and was not entitled to summary judgment on this cause of action. Bible Baptist Church v. Cleburne, 848 S.W.2d 826, 830 (Tex. App.—Waco 1993, writ denied). So well-established has this line of authority been that in 2004, this Court applied it to another proceeding, with remarkably similar facts, in a memorandum opinion in which it was summarily stated: INVERSE CONDEMNATION AND NUISANCE CLAIMS What actually caused the backup in the sewage line, whether the City knew of the problems, whether it intentionally or negligently failed to correct the cause of the backup, and whether the condition rose to the level of a nuisance or an unconstitutional taking are not known. Based on the current state of the law in this district, we hold that the trial court erred in granting the City’s plea to the jurisdiction regarding the inverse condemnation and nuisance claims. See Cozby v. City of Waco, 110 S.W.3d 32 (Tex. App.—Waco 2002, no pet.); Bible Baptist Church v. City of Cleburne, 848 S.W.2d 826 (Tex. App.—Waco 1993, writ denied). We recognize that an inverse condemnation case on these issues, which could modify our analysis, is currently pending review by the Texas Supreme Court, 92 S.W.3d 640 (Tex. App.—Beaumont 2002, pet. granted). But on the precedent currently binding on this court, Padgett and Dunn’s first issue is sustained, in part. Padgett v. City of Madisonville, 2004 Tex. App. LEXIS 1442, *2-3 (Tex. App.—Waco Feb. 11, 2004, no pet.). Bible Baptist has been cited at least 31 times with no adverse history. No appellate court has cited Padgett, which is as it should be with a true memorandum opinion. The petition for review in the Sabine River Authority of Texas v. Hughes opinion cited in Padgett was ultimately denied. Moreover, the Texas Supreme Court cases of Abilene v. Downs[1] and Dallas v. Jennings,[2] when compared to the procedural posture, facts, and holding of the trial court, support what the trial court did here, which was to allow the suit to proceed to a determination of the merits of whether the City has taken or damaged private property for the public’s benefit within the meaning of Article I, Section 17 of the Texas Constitution. At the very least, it is clear that Gabriel and Irene could easily amend their petition to bring themselves within the jurisdiction of the trial court as was held in the precedential cases in this district. I have not found anything that is inconsistent with the continued vitality of these cases as binding precedent upon this Court. If Gabriel and Irene are able to establish the back-flowing raw sewage caused by the intentional operation[3] of the sewage treatment system is a nuisance that has damaged the use and enjoyment of their home, they have been deprived of their property within the meaning of Art 1 Section 17 of the Texas Constitution. Because the Court holds that they will be permanently deprived of their property without even the opportunity to establish their unconstitutional takings claim, I respectfully, but vigorously, dissent. TOM GRAY Chief Justice Dissenting opinion delivered and filed October 6, 2021 Publish
