Houston, May 2 – The Houston Court of Appeals for the Fourteenth Appellate District handed the San Jacinto River Authority (SJRA) another loss in SJRA’s seemingly endless squandering of attorney fees to avoid blame for its actions in failing “to provide flood control” resulting in the horrible flooding during the Harvey storm. The Court of Appeals dismissed SJRA’s appeal for lack of jurisdiction, because SJRA failed to follow the rule of law, which first-year law students learn, that appeals require a ruling from the trial court before the Court of Appeals may exercise jurisdiction to review a judge’s decision.
In the case of San Jacinto River Authority versus Evan Lewis, the Court of Appeals dismissed the appeal for lack of jurisdiction, because SJRA appealed from the trial court which had not yet ruled on the issue on which SJRA appealed to the Court of Appeals. The following is a synopsis from the Court of Appeals’ April 16, 2019, opinion:
“Appellee Evan Lewis filed suit against SJRA alleging actions taken by SJRA in the immediate aftermath of Hurricane Harvey amounted to a taking of his property. In response, on November 5, 2018, SJRA filed a ‘Plea to the Jurisdiction and Motion to Dismiss under Rule 91a.’ In its plea/motion SJRA alleged that the trial court lacked jurisdiction over the suit for two reasons: (1) the Harris County Courts at Law have exclusive jurisdiction, and (2) SJRA, as a governmental entity, is generally immune from suit. The trial court did not rule on SJRA’s plea to the jurisdiction or its Rule 91a motion to dismiss. Rule 91a.3 imposes a duty on the trial court to grant or deny a Rule 91a motion within forty-five days after the motion is filed. Tex. R. Civ. P. 91a.3(c). Here, the forty-five day period expired December 20, 2018.
“On February 14, 2019, SJRA filed a notice of interlocutory appeal of the trial court’s ‘January 25, 2019 denial’ of its Rule 91a motion. In a footnote to its notice of appeal SJRA noted that, ‘The Court’s failure to rule on Defendant’s motion within forty-five days is effectively a denial of Defendant’s motion to dismiss.’ Lewis subsequently filed a motion to dismiss the appeal, arguing that there is no appealable order from which SJRA may appeal.”
Since there was no appealable order from which SJRA attempted to appeal, the Houston Court of Appeals granted Evan Lewis’ motion to dismiss the appeal.
The SJRA has a statutory duty “to provide flood control” and “to protect the soil from erosion,” as made very clear 82 years ago in the River Authority’s Enabling Legislation. SJRA has printed an excerpt of its Enabling Act in a history of itself on its website.
On October 16, 2017, SJRA General Manager tried to sidestep SJRA’s duty “to provide flood control,” which SJRA has never done, by trying to argue with the Senate Agriculture Committee during a hearing held in New Caney that SJRA has only has the power but not the duty “to provide flood control.”
During the Agriculture Committee hearing, State Senator Brandon Creighton (R-Conroe) engaged in a tense exchange with Houston towards the end of a hearing. Creighton asked whether SJRA has the duty “to provide flood control” since that’s in the SJRA original enabling statute which the Texas Legislature enacted in 1937.
“We don’t any taxing authority but flooding control is in our enabling legislation…We haven’t asked for that charge to be removed from the law,” said Houston. “But I would interpret ‘flood control’ as an authority we have but not a duty.”
Creighton responded, “The fact that you don’t feel you have a duty to do it is very troubling. That was written in the 1930s. When there’s danger, we run towards it as a steward of the public. But it sounds like you’re running away from the danger…We can’t wait until there’s thousands of people displaced to make those requests.”
Houston admitted that SJRA has the authority to provide flood control and admitted “one option to provide flood control [in Montgomery County] is for the River Authority to do it. We don’t provide flood control now, because we have the power but not the duty to do that.”
Creighton responded, “I’m embarrassed that the public has to hear that answer.”
In August, 2018, SJRA hired a Director of Flood Management, Chuck Gilman, at the startling salary of $180,000 per year. Sadly, the “Flood Management Division” of SJRA is little more than a press release, Gilman’s high salary, and the high salary of his secretary.
The Flood Management Division doesn’t do anything. The SJRA’s description of the Flood Management Division follows:
“Located at the Lake Conroe Dam, the Flood Management Division’s primary functions include: developing short-term and long-term regional flood management strategies within the Authority’s portion of the San Jacinto River Basin; building partnerships with federal, state, and local government entities; identifying funding sources and opportunities; and coordinating, collaborating, and potentially partnering with other flood management entities throughout the entire San Jacinto River basin. The Flood Management Division oversees the partnership and implementation of planned and funded projects, including the transfer of operations and maintenance of completed projects to partnering entities.”
In recent months, Gilman’s title has changed to “Director of Water Resources and Flood Management” since he had nothing whatsoever to do as the Director of Flood Management.
In other words, despite its statutory duty “to provide flood control,” SJRA does absolutely nothing by itself to fulfill that responsibility. SJRA obtained a Texas Water Development Board grant and a huge investment from each of the City of Conroe and the Montgomery County government to prepare a flood warning study. SJRA still has not implemented any flood warning plan or operations.
SJRA is one of four government entities putting money into another regional flood control study. The Montgomery County government is putting more money into the study than is the SJRA, which has approximately $55 million of unencumbered funds available to it. SJRA still has not implemented any flood controls or operations.
Now, SJRA is fighting lawsuits and apparently filing frivolous appeals rather than focusing its resources on its statutory duty “to provide flood control.”