NO. _____________________

JIMMY AND CHERYL WILLIAMS, § IN THE DISTRICT COURT OF

ET AL., §

§

Plaintiffs, §

§

vs. § GUADALUPE COUNTY, TEXAS

§

GUADALUPE-BLANCO RIVER §

AUTHORITY AND ITS OFFICERS §

AND DIRECTORS §

§

Defendants § ______ TH JUDICIAL DISTRICT

PLAINTIFFS’ VERIFIED ORIGINAL PETITION AND

APPLICATION FOR TEMPORARY RESTRAINING ORDER,

TEMPORARY AND PERMANENT INJUNCTION AND FOR DAMAGES

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, JIMMY AND CHERYL WILLIAMS, ET AL (collectively referred to

as “Plaintiffs”) complaining of the GUADALUPE-BLANCO RIVER AUTHORITY and its

Officers and Directors (collectively “Defendants” or “GBRA”) and show the following:

DISCOVERY TRACK

1. Pursuant to Rule 190.1, Tex. R. Civ. P., discovery in this action will be conducted

under Discovery Control Plan Level 3 unless an expedited trial is approved.

EXPEDITED TRIAL REQUEST

2. While this suit technically does not fit within the expedited-actions process of Rule

169, Tex. R. Civ. P., the importance of the issues raised in this case are far-reaching for the

residents, taxpayers, businesses and taxing authorities of Comal, Guadalupe and Gonzales

Counties. The destruction or dereliction of the six dams/levees at issue and the de-watering of the

remaining four reservoirs not only will severely and irreparably damage the Plaintiffs, but will

have a tremendous economic effect on the businesses located in these Counties, as well as the

taxing authorities located therein. Literally the millions of dollars which are pumped into the local

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economy through the recreational activities and property ownership on the Guadalupe River and

the millions of dollars collected by the taxing authorities such as the Navarro and Seguin

Independent School Districts will be substantially and adversely impacted. Therefore, the Plaintiffs

seek an expedited actions process similar to that provided in Rule 169, Tex. R. Civ. P., including

discovery and a prompt trial setting within six months.

PARTIES

3. Plaintiffs Jimmy and Cheryl Williams, et al, are property owners and

stakeholders of real properties located adjacent to the Guadalupe River. Specifically, the Plaintiffs

are persons (actual or legal) who own water-front, improved real estate appurtenant to the

Guadalupe River and all tributaries and back-waters thereof located in Comal, Guadalupe and

Gonzales Counties on the following reservoirs: Dunlap, McQueeney, Placid, Meadow, Gonzales

and Wood. A list of all Plaintiffs and their addresses is contained in Exhibit “A” hereto which is

incorporated herein. There are currently 295 Plaintiff-owners.

4. Defendant Guadalupe-Blanco River Authority (“GBRA”) is an agency and

political subdivision of the State of Texas created under Article 8280-106, Vernon Civil Statutes,

with its main office located at 933 East Court Street, Seguin, Texas 78155. GBRA may be served

with process by serving its registered agent, Alvin E. Schuerg, 933 East Court Street, Seguin,

Texas 78155.

5. The individual Defendants, officers and directors of GBRA, are Kevin Patteson,

General Manager/Chief Executive Officer; Jonathan Stinson, Deputy General Manager; Dennis

L. Patillo, Chair; Don Meador, Vice-Chair; Kenneth A. Motl, Secretary/Treasurer; Rusty

Brockman, Immediate Past Chair; William Carbonara, Director; Steve Ehrig, Director; Oscar

Fogle, Director; Ronald J. Hermes, Director; and, Tommy Mathews, II, Director, whose offices

are located at 933 East Court Street, Seguin, Texas 78155 and who may be served with process by

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serving their registered agent, Alvin E. Schuerg, 933 East Court Street, Seguin, Texas 78155, or

by serving them at their respective residences, or wherever they may be found.

JURISDICTION AND VENUE

6. Jurisdiction is conferred upon this Court by Chapter 2007, TEX. GOVT. CODE, and

as a result of the ultra vires acts and omissions on the parts of GBRA’s officers and directors

complained of herein pursuant to the Texas Supreme Court holding in Houston Belt & Terminal

Railway Co., BNSF Railway Co. v. City of Houston, 487 S.W.3d 154 (Tex. 2016).

7. Venue is conferred under § 15.002, TEX. CIV. PRAC. & REM. CODE as Guadalupe

County is the county in which a substantial part of the events or omissions giving rise to the claims

occurred, and Chapter 2007, TEX. GOVT. CODE as GBRA’s main offices and the individual

Defendants’ offices are located in Seguin, Guadalupe County, Texas.

BACKGROUND

June 8, 2019 FOLM Annual Meeting:

8. During the Friends of Lake McQueeney Owners’ Association (“FOLM”) annual

meeting held on Saturday, June 8, 2019, many of the Plaintiffs and other property owners were

informed by Defendant Jonathan Stinson that the failure of the McQueeney levee/dam is

“imminent,” as are the failures of all of the remaining four, intact levees (those on Lakes Wood

and Dunlap having already failed). FOLM invited not only Defendant Stinson to speak to some of

the Plaintiffs and other property owners, but also County Judge Kyle Kutscher and State

Representative John Kuempel to inform them “what is being done” with regard to the “imminent”

threat of failures of the Lake McQueeney levee and the other three, remaining intact levees. The

bottom line from all three individuals’ presentations was that GBRA has no plan in place to repair

or replace the existing infrastructure, nor does GBRA have any intention of creating such a plan.

In other words, GBRA is basically doing nothing in the face of the looming and catastrophic loss

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to Plaintiffs and other property owners, despite their statutory duties in this regard, as explained in

more detail herein below.

9. County Judge Kutscher informed some of the Plaintiffs and the other property

owners that the reduction in real property values along the Guadalupe River will be at least fifty

percent (50%) if and when the remaining levees fail. Such a precipitous decline in property values,

which has already begun since Defendant Stinson’s June 8, 2019 public announcement, will also

adversely affect the Navarro and Seguin Independent School Districts, the largest recipients of ad

valorem taxes in the area in the amount of millions of dollars, for which the Texas taxpayers will

have to make up. Furthermore, the two failed levees (Wood and Dunlap) and the “imminent”

failures of the remaining four levees (McQueeney, Placid, Meadow and Gonzales) will eventually

cost the involved communities untold dozens of millions of dollars in damages and lost revenues.

10. Defendant Stinson also told the FOLM group and some of the Plaintiffs that GBRA

has owned the six Guadalupe River hydroelectric dams/levees since 1963 when it purchased them

“at the end of their useful lives” for less than $4 million, has earned substantial amounts of income

from both the hydroelectric power and the water rights, and has made a conscious decision not to

maintain those assets’ infrastructures other than to occasionally repair or replace dam doors/gates.

According to GBRA’s own Comprehensive Annual Financial Report, “GV Hydro Division

personnel are responsible for the operation and maintenance of the generating stations as well as

the associated dams, lakes, ancillary equipment and adjacent properties.”

11. In fact, as early as 1969, an internal GBRA memorandum put its officers and

directors on notice that they had failed to reserve adequate funds for the repair and/or replacement

of the levees, and had no plans to do so in the future. Despite the imminent nature of this situation,

GBRA apparently ignored this memorandum and has taken no meaningful action with regard

thereto in the five decades since.

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12. In recent years, GBRA has repeatedly published in its Comprehensive Annual

Financial Reports that, “In FY 2017 GBRA began a comprehensive review of all infrastructure it

currently owns and/or operates to develop a long-term repair and replacement capital plan. The

area of immediate concern was the infrastructure within the Guadalupe Valley Hydroelectric

System (GV Hydro). This system is comprised of six low-head hydroelectric dams, power houses

and ancillary equipment all of which was originally constructed in the 1920’s and 1930’s. Due to

the age of many of the GV Hydro components, a major emphasis on repair and rehabilitation is

required.” Despite these public acknowledgements that “a major emphasis on repair and

rehabilitation is required,” and despite its statutory duties to maintain this critical infrastructure,

GBRA and the individual Defendant officers and directors have willfully and knowingly taken no

meaningful action in this regard. They have not set aside funds to cover the cost of repair or

replacement, nor will they allocate funds at their disposal for these purposes.

13. GBRA’s commissioned 2013 and 2019 hydraulic engineering studies confirm that

GBRA has willfully neglected the conditions of the dams since their acquisition. Now that these

92 year old assets (in reality, Placid dam was completed in 1964) have been intentionally left to

deteriorate and their failures are now “imminent,” Defendant Stinson had the audacity to state that

GBRA is offering to sell the McQueeney levee to FOLM for $1 and that GBRA would “give

FOLM the $1” for the purchase price. Defendant Stinson said that he had a “serious talk with [his]

boss,” presumably Defendant and CEO Patteson, about such a proposed sale. However, Defendant

Stinson was quick to add that GBRA would not sell or assign to FOLM or to the other Guadalupe

River owners’ associations its lucrative water and hydroelectric rights which produce over $60

million in annual income for that governmental bureaucracy.

14. To further illustrate how tone deaf GBRA and the individual Defendants are

regarding this critical situation, they recently authorized spending over $7 million obtained from

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that income for the purchase of a lot and the construction thereon of its new office building and

facilities in New Braunfels. Still further, GBRA has donated millions of dollars to non-profit

organizations with no corresponding consideration for its obligation to maintain the levees which

it owns, or to further any of its statutory responsibilities for this crucial infrastructure. In its budget

for 2020, GBRA is even setting aside money to hire and pay a “park ranger” and several employees

for the (Canyon) Gorge Preservation Society, a non-profit organization which provides no quid

pro quo or benefits to the six reservoirs noted herein. In other words, this organization of unelected

bureaucrats has wasted, and continue to waste, millions of dollars on itself and third parties while

it intentionally allowed, and continues to allow, its assets to deteriorate. These actions further

demonstrate that GBRA does indeed have disposable funds, it is simply electing not to use those

funds to repair or replace the infrastructure at issue.

Purposes of GBRA:

15. The GBRA was created by the Texas Legislature in 1933 to “develop, conserve and

protect the water of the Guadalupe and Blanco Rivers … [and] is authorized to conduct broad

ranges of activities, including building and operating reservoirs; engaging in flood control; selling

raw and treated water; conducting waste water treatment; acquiring property by imminent domain;

building and managing parklands; and, generating electricity.

16. In fiscal year 2017 alone, GBRA collected over $58 million in revenues, primarily

from water and wastewater sales which make up 65% of its revenue. Power sales made up 7%,

water quality contracts made up 6%, debt service income made up 16%, and various other sources

provided the remaining 6%. GBRA has burgeoned into a large and ever-growing, self-absorbing

bureaucracy which employs over 172 staff members, of which 70% are currently located at

GBRA’s headquarters in Seguin, Texas. Each year, GBRA spends almost 40% of its income on

its staff and administration for salaries, bonuses, benefits, pensions, expenses and overhead. The

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remaining amount is spent on water quality, maintenance and repairs, “legal and professional” and

debt service. However, relatively small amount of money has been spent to repair or replace the

actual infrastructures of the six levees since GBRA purchased them some 57 years ago- even

though GBRA’s statutory duty and obligation to do so is clear.

17. GBRA holds rights to almost 290,000 acre-feet of water owned by the citizens of

Texas, which represents 65% of all water permitted for consumption use in the Guadalupe River

Basin. A large portion of those rights are in the Canyon Reservoir (Canyon Dam), wherein GBRA

and the United States Army Corps of Engineers have a joint project to provide flood protection

and water supply to the area. GBRA operates the six hydroelectric plants along the Guadalupe

River and the seventh and largest levee at the Canyon Reservoir (dam). GBRA sells water to a

variety of municipalities in the State of Texas, including Kyle, Buda, San Antonio and Port

O’Connor. It also serves more than 350,000 individuals on a daily basis with water.

GBRA’s Statutory Charter:

18. GBRA was chartered in 1933 pursuant to Article 8280-106, VERNON CIVIL

STATUTES, as amended by S.B. 626, effective September 1, 2019. More specifically, that

statute/charter confers upon GBRA the following, pertinent powers which it is legally obligated

to perform:

• acquire by condemnation any and all property of any kind, real,

personal or mixed;

• sell, lease or otherwise dispose of any property of any kind, real,

personal or mixed;

• construct, extend, improve, maintain and reconstruct any and all

facilities of any kind, including but not limited to the six dams/levees

located on the Guadalupe River under its control;

• sue entities or be sued in its corporate name;

• pay all expenses necessary for the operation and maintenance and

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replacements and additions to its properties and facilities (dams and

levees);

• pay all sinking fund and/or reserve fund payments agreed to be made

in respect of any such bonds;

• the power to issue bonds or notes; and,

• the power to set aside or create sinking funds and reserve funds and

the regulation and disposition thereof.

19. Notably, GBRA’s charter does not authorize it to give away millions of dollars to

non-profit organizations or to pay people to serve as a park ranger and employees for The George

Preservation Society, neither of which allocations provides any benefits or assistance to the

maintenance of GBRA’s assets which are currently in critical condition.

TCEQ Requirements:

20. The Texas Commission on Environmental Quality (“TCEQ”) exercises authority

over GBRA, and the Texas Administrative Code provides specific requirements to which GBRA

must conform. In fact, during the week of August 19, 2019, the TCEQ confirmed in writing to

several property owners that it has jurisdiction over GBRA, that the TEXAS ADMINISTRATIVE CODE

applies to that organization, and that GBRA regularly reports to the TCEQ. Section 299.1, TEX.

ADM. CODE applies to the McQueeney levee/dam and several of the other dams noted herein. For

example, § 299.1(1) applies to dams in Texas which “have a height greater than or equal to 25 feet

and maximum storage capacity greater than or equal to 15 acre-feet.” The McQueeney dam fits

this definition since it is 50.4 ft. tall from its toe to the top and has 5,050 acre-feet. More

importantly, § 299.1(3) includes all dams that “are a high or significant hazard dam” as defined in

§ 299.41 (“a loss of human life, economic loss, damage to homes, interruption of service [for] the

design purpose of the utility.”)

21. GBRA recently publicized a notice entitled “GBRA Take Steps to Mitigate Risk

Opposed by Hydro Dams” stating “[S]afety is our top priority … [D]angers associated with these

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dams” include loss of human life and property damage. By GBRA’s own admission, the six levees

at issue are controlled by TCEQ pursuant to § 299.41, TEX. ADM. CODE. However, the fact of the

matter is that GBRA has absolutely no concern for damages that it causes to Plaintiffs’ real

properties by its intentional failure to maintain this critical infrastructure. These statements are

made for publicity purposes only, as publicized by its professional advertising and publicity agents

from the DeBerry Group to whom GBRA pays thousands of dollars- yet another expense and

undertaking of GBRA not authorized by statute.

22. Section 299.41, TEX. ADM. CODE, specifies GBRA’s “responsibilities” with regard

to the six dams:

(a) [T]he owner [GBRA] shall be responsible for operating and

maintaining the dam and appurtenant structures in a safe manner.

(b) [T]he owner [GBRA] shall be responsible for addressing all

maintenance … at the dam and appurtenant structures. …

(c) The owner [GBRA] shall ensure that necessary maintenance,

repairs, alterations, or modifications are initiated and completed in

a timely manner. …

(d) Nothing in this chapter or, in orders issued by the commission shall

be construed to relieve an owner [GBRA] of a dam or reservoir of

the legal duties, obligations or liabilities incident to ownership or

operation.

23. As noted herein, GBRA and the individual Defendants have knowingly and

intentionally decided not to comply with the referenced TEX. ADM. CODE and TEX. GOV’T. CODE

as amended by S.B. 626, requirements- even though, contrary to recent claims, it has sufficient

funds to do so. Under present information and belief, GBRA retains millions of dollars, perhaps

as much as $40 million, but inexplicably refuses to utilize those funds on the repairs and

replacements of the dams that are critically needed, and mandated by statute.

Texas Sunset Advisory Commission Report – 1994:

24. Due to problems with the management of GBRA demonstrated prior to 1994, the

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Texas Legislature identified concerns with that management and placed the GBRA under the

Texas Sunset Advisory Commission (the first water authority to come under such scrutiny), which

has the authority to make recommendations to correct the Authority’s deficiencies and/or to

recommend the abolition of GBRA. As best that can be determined from historical documents,

GBRA took no action with regard to the Commission’s 1994 recommendations for the better

management of its assets, the six levees/dams.

Texas Sunset Advisory Commission Report – 2018-2019:

25. Recently, the Sunset Advisory Commission issued a report making blistering

findings and recommendations with regard to GBRA’s (which necessarily included its officers and

directors) operations. This report highlighted GBRA’s wholesale failure to tend to and repair its

“aging infrastructure and inadequate asset management,” particularly the dams/levees along the

Guadalupe River, of which five are some 92 years old: Dunlap, McQueeney, Meadow, Gonzales

and Wood. The Placid dam is only 55 years old.

26. The Defendant officers and directors of the GBRA brazenly refused, and continue

to refuse, to follow and implement the legal/statutory requirements of Article 8280-106, VERNON

CIV. STAT. and Section 299.41, TEX. ADM. CODE, constituting ultra vires acts and omissions. .

Specifically, after a two year investigation, the Sunset Advisory Commission found the following:

• GBRA and its officers and directors have not implemented a comprehensive

asset management process to ensure timely repair and replacement of its

significant assets (the levees), leading to failed infrastructure and potential

service disruptions for its customers;

• gates in all of the system operated and maintained by GBRA lack significant

maintenance;

• GBRA and its officers and directors have failed to properly repair the 15

spill gates that broke irreparably in 2016;

• dozens of GBRA’s needs have been looming for years which recently

resulted in the Authority’s new leadership having to “scramble to address

problems that have been ‘imminent’” and known to GBRA for years;

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• GBRA’s failures affect many aspects of the lives and businesses of the

residents along the Guadalupe River, including but not limited to quality of

life, tax and property values on lakefront properties, property repair issues

for dock and boat owners and recreational and other income to the

community;

• the lack of coordination with regard to GBRA’s procurement practices;

• the failure of GBRA and its officers and directors to clarify and manage

their relationships with non-profit organizations such as the Guadalupe-

Blanco River Trust, the San Antonio Bay Foundation, the Gorge

Preservation Society and the Guadalupe River Foundation to which GBRA

has donated millions of dollars over the years while neglecting its own

assets (and not having any legitimate reasons or quid pro quo for the

expenditure of those millions of dollars);

• GBRA and its officers and directors have no formal system for identifying

long-term infrastructure needs of the levees, and setting priorities and

budgeting for repairs or replacement; and,

• GBRA and its officers and directors have failed to communicate with

property owners, taxpayers and residents along the Guadalupe River with

regard to its actions and inactions, completely failing to provide any

transparency.

GBRA’s May 8, 2018 Response to the Sunset

Advisory Commission’s Report:

27. On May 8, 2018, the GBRA provided a brief, two page response to the 31 pages of

the Sunset Advisory Commission’s findings, conclusions and recommendations, which have now

been amended and supplemented by S.B. 626, effective September 1, 2019, with regard to GBRA’s

and its officers’ and directors’ manifest deficiencies as well as its self-absorbed and wrong-headed

policies. GBRA’s response was half-hearted and conclusory in nature, generally stating that “[A]ll

of GBRA’s operations were developed in response to population growth and the demand for

utilities.” There was no explanation as to how GBRA will respond to the damning findings and

recommendations made by the Sunset Advisory Commission.

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GBRA’s Response to the Problems and Its Self-Centered

Interests Concerning Expenditures of Money:

28. As noted above, Defendant Stinson, recently advised numerous Plaintiffs and other

property owners that since GBRA and its officers and directors have knowingly and intentionally

failed to act while the agency’s assets have deteriorated to the extent that failures of those assets

(levees) are “imminent,” GBRA is offering to sell the levees to the six lake owners’ associations

for $1 each, and that GBRA would “give [the associations] the $1” each for the purchase price

should each association become a municipal utility district (“MUD”) with taxing authority.

However, GBRA will not release or sell any of its water, wastewater or hydroelectric rights to

FOLM or to any other property owners’ organizations. In other words, now that GBRA, its officers

and directors have intentionally committed ultra vires, willful and intentional acts of gross neglect

with regard to the agency’s assets, have intentionally damaged the market values of the Plaintiffs’

and other property owners’ water front investments, they expect the Plaintiffs’ various owners’

associations to maintain and replace the levees, but to retain for itself the income-generating assets.

More importantly, GBRA wants the Plaintiffs and other property owners to be further taxed by

MUDs or WCIDs in order to raise funds to repair and replace the dams which GBRA has the

statutory duty and obligation to do. GBRA’s and its officers’ and directors’ arrogance in this regard

is unsurpassed.

29. On or about June 20, 2019, a GBRA representative again met with the board

members of FOLM, directors of the Lake McQueeney Preservation Association and at least one

Guadalupe County Judge. As reported by FOLM’s President, Bob Spalten, “it became clear that

GBRA is looking to the lake associations” to take control of and resolve the problems with the

levees, thereby completely abandoning its chartered, statutory duties and responsibilities.

30. At the same time, GBRA recently authorized spending over $1 million to purchase

real estate in New Braunfels and over $6 million to build a new and unnecessary office building

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and facilities on that parcel of land so that several of its officers and managers who live along the

I-35 corridor will have a shorter commute to Seguin each day for work. Such a decision is an abuse

of discretion and an ultra vires act under the circumstances of the “imminent” failures of the four

remaining levees.

GBRA’s Latest Actions/Deceit:

31. In July, 2019, GBRA instructed one of its commercial customers on Lake Placid,

CMC Commercial Metals (“CMC”), to “pull its pumps” within 30 to 40 days because its officers

had decided to drain or de-water all of the remaining reservoirs. A knowledgeable officer of CMC

informed several property owners of this instruction and that the decision had been made by

GBRA’s officers and/or directors “in retaliation” to the July 2, 2019, Plaintiffs’ notice of claims.

When questioned about this drastic and unsupported action, Defendant Stinson denied it, claiming

that the alleged decision to de-water the reservoirs was false. When later confronted again about

GBRA’s instructions to CMC, GBRA and Defendant Stinson finally admitted that the instructions

to CMC were in fact true, but then denied that the decision was made in retaliation to the notice of

this suit.

32. At the same time, GBRA had published its Agenda for the monthly Directors’

meeting scheduled for July 11, 2019, wherein it provided vague notice of a discussion regarding

the “hydroelectric dams and public safety.” This notice was intentionally vague, in an effort to

hide GBRA’s true intentions to have the Directors “rubber stamp” or acquiesce to the Defendant

officers’ plan to drain the reservoirs in retaliation for the July 2, 2019 notice. No person could read

this Agenda to include a discussion and subsequent decision to de-water the reservoirs. This was

an intentionally deceptive and non-transparent act by GBRA and the other Defendants.

33. More egregious still, on information and belief, this de-watering scheme was

already a foregone conclusion by the time of the July 11, 2019 meeting. This fact, along with the

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intentionally vague notice to the public, suggest that all or some of the individual Defendant

officers and directors of the GBRA met in closed meetings prior to the July 11, 2019 public

meeting regarding their de-watering scheme, in direct violation of the TEXAS OPEN MEETINGS ACT,

Chapter 551, TEX. GOV’T CODE. On present information and belief, the individual Defendant

directors knowingly conspired to circumvent the TEXAS OPEN MEETINGS ACT by meeting in

numbers less than a quorum for the purpose of secret deliberations, and did so without having or

disclosing a certified agenda or recording, giving rise to individual liability.

34. Upon learning the true intention of GBRA to de-water the reservoirs, FOLM

notified its 600+ members of the July 11, 2019 Directors’ meeting. In response, several hundred

affected property owners attended the July 11, 2019 GBRA monthly Directors’ meeting to voice

their concerns of GBRA’s impending actions and that dewatering the reservoirs was unnecessary

for “public safety.” Had GBRA been successful in hiding its true intentions of dewatering the

reservoirs, no member of the public would have attended the monthly directors’ meeting. With all

the publicity carried in local newspapers and the San Antonio television stations, the GBRA

directors and officers were forced to temporarily suspend any decision to drain the reservoirs

“pending an engineering study” to determine whether such drastic actions were necessary, thereby

exposing the shameful fact that GBRA’s officers and directors were ready to move forward with

the drastic measure of de-watering without any appropriate engineering studies, and without

appropriately exploring alternative courses of action. This suggests strongly that GBRA’s de-

watering scheme was in fact retaliation against the Plaintiffs for the notice of the causes of action

contained herein. This is also confirmed by the fact that GBRA has made a political agreement

with the City of Seguin not to de-water the reservoir located adjacent to Starke Park, further

establishing that dewatering is not required for any of the reservoirs. These intentional acts and

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omissions clearly confirmed the Texas Sunset Advisory Commission’s conclusion that GBRA

lacks public “transparency.”

35. Undeterred, after the July 11, 2019 Director’s meeting, the GBRA officers and

directors met in a secret, executive session wherein, under present information and belief, the

GBRA officers were unlawfully provided the authority by the Defendant Directors or the

Defendant Directors acquiesced to dewatering the reservoirs, potentially in further violation of the

TEXAS OPEN MEETINGS ACT. The Directors never voted to approve such an action in a public

session/hearing. Thereafter, on or about August 12, 2019, Defendant Patteson outright lied to the

various owners’ associations that GBRA had “no plans or timelines” to de-water the reservoirs.

However, two days later, on August 15, 2019, after they had spun their story to the press of a

feigned public concern (even though neither the Wood dam nor the Dunlap dam failures caused

any minor or major flood events), had previously hired a public relations agent, the DeBerry

Group, set up a crisis management telephone line and established a website to support its position,

Defendants Patteson and Stinson announced to the world GBRA’s intentions to begin dewatering

all of the reservoirs on September 16, 2019.

36. Prior to the Plaintifs’ July 2, 2019 demand/notice letter (para. 37-38, infra), GBRA

never expressed any concern for either public safety or for damage to personal properties. As

such, the Plaintiffs’ requests for injunctive relief herein against GBRA and its directors and officers

are proper and should be granted. This blatant deceit is a common behavior on the parts of the

individual Defendants, especially Patteson and Stinson which is either authorized by, approved by

or acquiesced to by the individual GBRA Director Defendants.

NOTICE OF CLAIMS

37. As noted above, on July 2, 2019, the Plaintiffs informed GBRA in writing of the

claims against it for the intentional ultra vires acts and omissions described herein.

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38. The Defendants were duly and timely notified that the Plaintiffs have various

causes of action against GBRA based upon Chapter 2007, TEX. GOVT. CODE. Section 2007.002

defines “Governmental Entity” as “a board, commission, counsel, department, or other agency in

the executive branch of state government that is created by constitution or statute;” “Owner” as a

“person with legal or equitable title to affected private real property at the time a taking occurs;”

“Market Value” as “the price a willing buyer would pay a willing seller after considering all factors

in the marketplace that influence the price of private real property;” and, “Private Real Property”

as “an interest in real property recognized by common law, including a groundwater or surface

water right of any kind, that is not owned by the federal government, this state, or a political

subdivision of this state.” GBRA is a “Governmental Entity,” the Plaintiffs are “Owners,” and the

property owners’/Plaintiffs’ improved real properties located appurtenant to the Guadalupe River

are “private real property” all as defined by the TEXAS GOVERNMENT CODE. This Code section

provides for private causes of action by the Plaintiffs to be maintained against the GBRA under

which this suit is partially brought.

39. The intentional actions on the part of the Defendant GBRA have resulted in a

“taking” of the property owners’ real properties. GBRA and its officers and directors have

intentionally determined not to repair, maintain or replace the infrastructures of all of the levees

situated along the Guadalupe River as required by statute, instead, electing to continue to take

actions necessary only to ensure the lucrative income that it makes from the sale of water, waste

water and other sources of income for other “public good” and for itself and its directors. Such

actions and omissions constitute abuses of discretion and ultra vires acts in conscious disregard of

Article 8280-106, Vernon Civ. Stat. and Section 299.41, TEX. ADM. CODE. Recently, the First

Court of Appeals in Houston, Texas ruled in San Jacinto River Authority v. Burney, 570 S.W.3d

820 (Tex. App.—Houston [1st Dist.] 2018) that the Chapter 2007 constitutional taking does indeed

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afford a private cause of action to the Plaintiffs. Already, GBRA’s announcement, through

Director Stinson, that the failures of all of the remaining, intact Guadalupe River levees are

“imminent” has created “market value reductions” in water-front properties by at least 50% as

State Representative Kuempel has confirmed. Evidence already indicates that numerous potential

buyers have and are continuing to “back out” of earnest money contracts for the purchases of real

properties appurtenant to the Guadalupe River upon learning of GBRA’s prognostications of

“imminent” asset failures based upon its grossly negligent, intentional and ultra vires acts and

omissions of not maintaining its assets as required by Article 8280-106, Vernon Civ. Stat., as

amended by S.B. 626, and Section 299.41, TEX. ADM. CODE. GBRA and its officers and directors

“intentionally, knowingly, affirmatively and consciously” decided to ignore their statutory duties

and not repair, rebuild or replace the levees, with full knowledge that failures of those levees were

“imminent,” deciding rather, to effectively take specific assets for other public use, to wit: the sale

of water and wastewater as well as other uses including those for its own, self-interested purposes.

GBRA and the other Defendants were aware of their failures and their decisions to act in

consideration of other alleged “public interests” for years but have hidden that from the Plaintiffs

and other property owners until June 8, 2019. GBRA and the other Defendants were informed of

same by the Sunset Advisory Commission in 1993 and 2019 and by its own internal memorandum

of 1969. Moreover, GBRA and the other Defendants knew and continue to know which properties,

including the Plaintiffs’ properties, will substantially lose value as a result of their deliberate and

considered inactions, policies and decisions.

40. “A taking occurs when the government physically appropriates or invades private

property or unreasonably interferes with the property owners’ right to use and enjoy it” which

have “proximately caused damages to the properties.” Burney, 570 S.W.3d at 827. GBRA and the

individual Defendants were clearly faced with a choice: to utilize funds to repair or replace the

18

levees in question or to continue to spend money on themselves and for what they perceived as

other “public uses.”

41. The First Court of Appeals has recognized property owners similar to the Plaintiffs

and their combined contentions that a River Authority’s “actions affected their private real

property by restricting or limiting their rights to their property, and that such actions were the

producing [proximate] cause of a reduction of at least 25% in the market value of the affected

properties … and the diminution in value as a result of the … stigma. … is sufficient to establish

statutory taking claims.” Burney, 570 S.W.3d at 829.

42. Pursuant to Chapter 2007, TEX. GOVT. CODE, the Plaintiffs are entitled to (a)

remuneration for the “market-value reductions” for their improved, real properties as the proximate

result of the unlawful “taking” by GBRA and (b) a mandatory, permanent injunction requiring

GBRA and the individual Defendants to repair and/or replace the six dams/levees that GBRA

currently owns, among other statutory duties. The injunction claims/remedies apply to both GBRA

and the individual Defendants.

43. Since GBRA maintains the power of eminent domain, its deliberate actions also

constitute the inverse condemnations of the Plaintiffs’ improved real properties. Burney, 570

S.W.3d at 825.

CLAIMS AND INJUNCTIVE RELIEF SOUGHT

WITH REGARD TO THE INDIVIDUAL DEFENDANTS

44. Paragraphs 2 through 43 are restated herein as if set forth verbatim.

45. The individual Defendants named herein are officers and directors of GBRA. Suits

against these types of individuals for injunctive relief fall within the district court’s supervisory

jurisdiction to protect against actions or inactions by State officials or entities that are

unconstitutional or ultra vires in nature. Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n

on Envtl. Quality, 307 S.W.3d 505-513 (Tex.App—Austin 2010, no pet). While governmental

19

immunity provides broad protection to the State and its officers, “it does not bar a suit against a

government officer for acting outside his authority—i.e., an ultra vires suit.” Houston Belt &

Terminal Railway v. Houston, 487 S.W.3d 154, 161 (Tex. 2016); Tex. Parks & Wildlife Dep’t v.

Sawyer Trust, 354 S.W.3d 384, 393 (Tex. 2011).

46. Here, the Plaintiffs’ requests for injunctive relief against the individual Defendants

are based upon their intentional failures to perform their statutorily imposed duties and their

intentional actions outside of their statutory duties, considering the factual circumstances of this

case. Houston Belt, 487 S.W.3d at 161. The Supreme Court has held:

… while the protections of governmental immunity remain robust,

they are not absolute. … Governmental immunity bars suits

complaining of the exercise of absolute discretion, but not suits

complaining of either an officer’s failure to perform administerial

act (officers exercise of judgment or limited discretion without

reference to or in conflict with the constraints of the law authorizing

the official to act). … A public officer has no discretion or

authority to misinterpret the law. … [A]llowing such suits . . .

encourages enforcement of existing policy [for officers and

directors to properly perform their legal duties]. Houston Belt, 487

S.W.3d at 163-64.

47. Therefore, the claims for injunctive relief herein are made against both GBRA and

the individual Defendants who have acted ultra vires to their legally (statutorily) imposed duties

and obligations pursuant to Article 8280-106, VERNON CIV. STAT. and § 299.41, TEX. ADM. CODE.

Furthermore, since the individual Defendants’ acts and omissions are ultra vires in nature, neither

GBRA nor its insurers may use state or agency funds to provide a defense and/or indemnity to

those individuals in this suit, and Plaintiffs seek injunctive relief barring said use of funds. Id.

CAUSES OF ACTION/REQUESTS FOR INJUNCTIVE RELIEF

Damages (GBRA Only):

48. Paragraphs 2 through 47 are restated herein as if set forth verbatim.

20

49. The intentional actions on the part of GBRA have resulted in a “taking” of the

property of the Plaintiffs’ water-front improved, real properties. GBRA has knowingly and

intentionally refused to execute its statutory duties and obligations by failing to repair, maintain or

replace the infrastructures of all of the levees situated along the Guadalupe River; instead,

Defendants have elected to take actions only necessary to ensure the lucrative income that it makes

from the sale of water, wastewater and other sources of income for other “public good” and for

itself and its officers, directors and employees.

50. Pursuant to San Jacinto River Authority v. Burney, 570 S.W.3d 820 (Tex.App.—

Houston [1st Dist.] 2018), the Chapter 2007, TEX. GOVT. CODE “taking” affords a private cause of

action to the Plaintiffs. The taking of property occurs when the government physically appropriates

or invades private property or unreasonably interferes with the property owner’s right to use and

enjoy it which have proximately caused damages to those improved, real properties.

51. As a proximate result of GBRA’s acts and omissions, the Plaintiffs and the have

been damaged in an amount far exceeding the jurisdictional limits of this Court. This suit is timely

filed pursuant to Section 2007.021(b), TEX. GOV’T. CODE.

Injunctive Relief (All Defendants):

52. Paragraphs 2 through 51 are restated herein as if set forth verbatim.

53. The Plaintiffs seek the following mandatory injunctive and prohibited injunctive

relief:

a. GBRA be immediately enjoined from dewatering the McQueeney,

Placid, Meadow and Green reservoirs until GBRA produces (1) a

detailed report from an independent and licensed civil engineering

firm which provides specific and valid scientific reasons for such

action; (2) a “wet-lands” study prepared by an independent

experienced, licensed engineer and licensed attorney regarding this

subject and whether the reservoirs can be de-watered without

violating applicable law; and, (3) GBRA fully complies with the

requirements of Section 299.41(a) – (d), TEX. ADM. CODE and

Article 8280-106, VERNON CIV. STAT., as amended by S.B. 626

21

effective September 1, 2019, and this Court approves said reports to

be considered by GBRA’s Board of Directors and finds compliance

with these authorities;

b. GBRA and the individual Defendants be mandatorily and

permanently enjoined to take affirmative action to exercise their

chartered and legal responsibilities to “replace, rebuild and operate”

the six levees pursuant to Article 8280-106, VERNON CIV. STAT., as

amended by S.B. 626, effective September 1, 2019, Section 299.41,

TEX. ADM. CODE, and any other applicable statute(s) so directing,

by utilizing the millions of dollars that it retains and has at its

disposal for such statutory purposes;

c. GBRA and the individual Defendants be immediately enjoined from

spending the $7+ million on GBRA’s proposed new

offices/facilities in New Braunfels, and from purchasing real estate

in New Braunfels for that purpose, and that money previously

allocated for that purpose be instead earmarked for engineering and

replacement and/or repair of the six levees at issue;

d. GBRA and the individual Defendants be immediately enjoined from

donating or paying any funds at their disposal to non-profit

organizations;

e. GBRA and the individual Defendants be mandatorily and

permanently enjoined to affirmatively implement the

recommendations of the Sunset Advisory Committee in its 2018-

2019 Report;

f. GBRA and the individual Defendants be immediately enjoined from

issuing pay raises and/or bonuses and/or monetary incentives to any

of its officers and employees until such time as this Court finds and

confirms that they have met the statutorily required obligations

imposed upon them by Article 8280-106, VERNON CIV. STAT., as

amended by S.B. 6262, and Section 299.41, TEX. ADM. CODE, with

regard to the six levees at issue;

g. GBRA and the individual Defendants be immediately enjoined from

hiring or employing lobbyists or those acting in a lobbying capacity

until GBRA fulfills all of its statutory obligations noted herein with

regard to the six levees and reservoirs at issue;

h. GBRA be mandatorily enjoined to take affirmative action to

compensate the Plaintiffs/property owners for the fair market value

of the effective “taking” of their real properties and/or for the inverse

condemnations of same by GBRA;

i. GBRA be mandatorily and permanently enjoined to specifically

22

describe in concise and understandable words in its Agendas for

Directors’ meetings which pertain to any and all proposed actions

and discussions to be considered with regard to the six reservoirs

noted herein and their associated dams/levees;

j. GBRA be permanently enjoined from spending any agency funds

for the defense and/or indemnity of the individual Defendants in this

lawsuit, including using any defenses provided/extended by any

insurer from an insurance policy wherein GBRA has paid the

premiums; and,

k. GBRA be permanently enjoined from spending any agency funds

on advertising or public relations agents to promote its image or

positions with regard to the six reservoirs noted herein and their

associated dams/levees, or with respect to this lawsuit, as those

expenditures are not authorized by the enabling statute and are

unnecessary and unreasonable expenses for a State agency to make.

APPLICATION FOR TEMPORARY RESTRAINING

ORDER AND TEMPORARY INJUNCTION

54. Paragraphs 2 through 53 are incorporated herein for all intents and purposes as if

set forth verbatim.

55. GBRA has both publicly announced and has notified each of the Plaintiffs via

Certified Mail, Return Receipt Requested that beginning September 16, 2019, a “systematic

drawdown” (de-watering) of the lakes at issue herein will occur beginning at Lake Gonzales and

then moving upstream to Meadow Lake, Lake Placid and Lake McQueeney. (Exhibit “B”)

Furthermore, GBRA has stated the following:

We anticipate the dewatering of each lake will take approximately 3 days

and the dewatering of all lakes will be completed by the end of September

barring any unforeseen delays. Property owners surrounding the lakes will

receive an additional notice prior to the beginning of the drawdown with

more information. Id.

56. GBRA has determined to take this drastic action without consideration of

appropriate, exhaustive and conclusive engineering studies pertaining to the irreparable harm and

damages that will be suffered by the Plaintiffs with regard to the “dewatering plan,” to wit: damage

to the environment, damage to 100 year old bald Cypress trees lining the lakes/reservoirs, damage

23

to the flora and fauna, inadequate time for the Plaintiffs to plan for and to take actions to protect

lake front improvements, including but not limited to bulkheads, docks, decks, boat houses and

other, water-front improvements, damages to property values, including stigma damages, and the

loss of the Plaintiffs’ right to enjoy their improved, real property as a result of GBRA’s

unreasonable interference with regard to same.

57. Furthermore, GBRA has not properly and conclusively assessed the risk of harm

should there be a “sunny day” breach(es) of the remaining dams/levees. It has presumed, without

proper investigation, unproven causes of the Dunlap dam failure in May, 2019 and extrapolated

that presumption to the remaining dams- even to the Placid dam which was only completed in

1964. GBRA has not considered that the Placid dam was constructed in 1964 and is only 54 years,

which is approximately one half the age of the other dams. As a matter of fact, according to a

2013 Hydraulic and Breach Analyses engineering study commissioned by GBRA, the potential

for downstream flooding, property damage and effects to public safety which could be suffered as

a result of “sunny day” breaches of the levees were found to be minimal and did not amount to a

major flood event(s) and the substantial property damages and dangers to public safety that GBRA

is now touting a mere five years later. Any potential downstream flooding during a “sunny day”

breach of a dam on the Guadalupe River has been substantially lessened since Lake Dunlap was

“dewatered” in May, 2019, Lake Wood was de-watered three years ago and the Placid dam is only

54 years old. GBRA claims not to even know what caused the Wood and Dunlap dams’ failures,

even though GBRA received $3.5 million from the State of Texas to investigate and determine the

reason(s) for the Wood dam failure. GBRA makes these exaggerated claims to exculpate itself

from the damages and irreparable harm caused by its intentional refusal to comply with its

statutorily-mandated obligations and to foist on the Plaintiffs and other property owners its

obligations to maintain the six levees. All of the problems experienced with the current, existing

24

levees were directly caused by GBRA’s intentional malfeasance as noted herein.

58. The threat to public safety claimed by the GBRA is without support in fact. When

the Dunlap dam failed in May, 2019, the effects downstream on Lake McQueeney were minimal,

as were the downstream effects when the Lake Wood dam failed three years ago. After the Dunlap

dam failed, at the head waters of Lake McQueeney and in the most narrow part of the upper-river,

the water level gradually rose to 1 foot to 1½ feet with no resultant damages; at the halfway

location on the river, the water gradually rose no more than 5 to 8 inches and then returned to

normal level within one hour with no resultant damages; and, on the main body of the lake near

Treasure Island, the water did not noticeably rise which obviously caused no resultant damages.

GBRA now claims that it must dewater all of the remaining reservoirs for “public safety concerns.”

59. GBRA has within its capacity and authority the ability to protect the public by

means other than dewatering the remaining reservoirs. Currently, there can be no damage or risk

to the public on Lake McQueeney because Dunlap has already been dewatered. Considering the

effects that Lake Dunlap’s failure had, the resultant downstream rise in water would also be

minimal. Certainly, there would be no risk or damage during a “sunny day” failure of any one dam

from Lake Wood proceeding further south as Lake Wood has already been dewatered. And, the

Placid dam should not fail for any reason since it is only 54 years old, only halfway through its

useful life. GBRA has known of the dams’ conditions for years and has never expressed a concern

for public safety until they received notice of the claims in this lawsuit.

60. Plaintiffs are entitled a temporary restraining order and injunction to preserve the

status quo of the subject matter of the suit pending a judicial resolution of the merits by prohibiting

GBRA from de-watering the McQueeney, Placid, Meadow and Gonzales reservoirs beginning on

September 16, 2019. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). A plaintiff

seeking a temporary injunction must plead and prove three elements: (a) a cause of action against

25

the defendant and a probable right to the relief sought; (b) a probable and imminent injury; and,

(c) an irreparable injury or inadequate remedy at law. Id. As set forth herein, the Plaintiffs need

injunctive relief to protect them from the imminent threat of irreparable injury caused by GBRA

and the individual Defendants.

61. In conjunction therewith, the Plaintiffs are entitled to a temporary restraining order

because they will suffer immediate and irreparable injury, loss, or damage before a hearing can be

held on their request for temporary injunction.

(1) The Causes of Action against the Defendants

and a Probable Right to the Relief Sought:

62. Plaintiffs have various causes of action against GBRA based upon Chapter 2007,

TEX. GOVT. CODE. Section 2007.002 defines “Governmental Entity” as “a board, commission,

counsel, department, or other agency in the executive branch of state government that is created

by constitution or statute;” “Owner” as a “person with legal or equitable title to affected private

real property at the time a taking occurs;” “Market Value” as “the price a willing buyer would pay

a willing seller after considering all factors in the marketplace that influence the price of private

real property;” and, “Private Real Property” as “an interest in real property recognized by common

law, including a groundwater or surface water right of any kind, that is not owned by the federal

government, this state, or a political subdivision of this state.” GBRA is a “Governmental Entity,”

the Plaintiffs are “Owners,” and the property owners’/Plaintiffs’ improved real properties located

appurtenant to the Guadalupe River are “private real property” all as defined by the Texas

Government Code. This Code section provides for private causes of action by the Plaintiffs to be

maintained against the GBRA under which this suit is partially brought.

63. “A taking occurs when the government physically appropriates or invades private

property or unreasonably interferes with the property owners’ right to use and enjoy it” which

have “proximately caused damages to the properties.” Burney, 570 S.W.3d at 827.

26

64. The First Court of Appeals has recognized property owners similar to the Plaintiffs

and their combined contentions that a River Authority’s “actions affected their private real

property by restricting or limiting their rights to their property, and that such actions were the

producing [proximate] cause of a reduction of at least 25% in the market value of the affected

properties … and the diminution in value as a result of the … stigma. … is sufficient to establish

statutory taking claims.” Burney, 570 S.W.3d at 829.

65. The intentional actions on the part of the Defendant GBRA have resulted in a

“taking” of the property owners’ real properties, without a requisite “public use” to justify same.

GBRA and its officers and directors have knowing and intentionally failed to execute their

statutory duty to repair, maintain or replace the infrastructures of all of the levees situated along

the Guadalupe River;instead, Defendants continue to take actions necessary only to ensure the

lucrative income that it makes from the sale of water, waste water, and other sources of income

without allocating sufficient funds to the critical infrastructure at issue. Such actions and omissions

constitute abuses of discretion and ultra vires acts in conscious disregard of Article 8280-106,

VERNON CIV. STAT., as amended by S.B. 626, and Section 299.41, TEX. ADM. CODE.

66. Recently, the First Court of Appeals in Houston, Texas ruled in San Jacinto River

Authority v. Burney, 570 S.W.3d 820 (Tex. App.—Houston [1st Dist.] 2018) that the Chapter 2007

constitutional taking does indeed afford a private cause of action to the Plaintiffs. Already,

GBRA’s announcement through Director Stinson that the failures of all of the remaining, intact

Guadalupe River levees are “imminent” has created “market value reductions” in water-front

properties by at least 50%, as State Representative Kuempel has confirmed. Evidence already

indicates that numerous potential buyers have and are continuing to “back out” of earnest money

contracts for the purchases of real properties appurtenant to the Guadalupe River upon learning of

GBRA’s prognostications of “imminent” asset failures based upon its grossly negligent,

27

intentional and ultra vires acts and omissions of not maintaining its assets as required by Article

8280-106, VERNON CIV. STAT., as amended by S.B. 626, and Section 299.41, TEX. ADM. CODE.

GBRA and its officers and directors “intentionally, knowingly, affirmatively and consciously”

decided to ignore their statutory duties and not repair, rebuild or replace the levees, all the while

with full knowledge that failures of those levees were “imminent.” Rather than execute their

statutory duties with respect to this infrastructure, Defendants have instead squandered the

resources at their disposal for other uses which do not benefit Plaintiffs or the other property

owners of this community. GBRA and the other Defendants were aware of this looming crisis for

years but have hidden these facts from the Plaintiffs and other property owners until June 8, 2019.

GBRA and the other Defendants were put on notice by the Sunset Advisory Commission in 1993

and 2019 and by its own internal memorandum of 1969. Moreover, GBRA and the other

Defendants knew and continue to know which properties, including the Plaintiffs’ properties, will

substantially lose value as a result of their deliberate and considered inactions, policies and

decisions.

67. Pursuant to Chapter 2007, TEX. GOVT. CODE, the Plaintiffs will be entitled to (a)

remuneration for the “market-value reductions” for their improved, real properties as the proximate

result of the unlawful “taking” by GBRA and (b) a mandatory, permanent injunction requiring

GBRA and the individual Defendants to repair and/or replace the six dams/levees that GBRA

currently owns, among other statutory duties. The injunction claims/remedies apply to both GBRA

and the individual Defendants.

68. Since GBRA maintains the power of eminent domain, its deliberate actions also

constitute the inverse condemnations of the Plaintiffs’ improved real properties. Burney, 570

S.W.3d at 825. Once again, GBRA has not cited and cannot point to a legitimate “public use,”

grounded in facts and sound science.

28

69. The individual Defendants named herein are officers and directors of GBRA. Suits

against these types of individuals for injunctive relief fall within the district court’s supervisory

jurisdiction to protect against actions or inactions by State officials or entities that are

unconstitutional or ultra vires in nature. Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n

on Envtl. Quality, 307 S.W.3d 505-513 (Tex.App—Austin 2010, no pet). While governmental

immunity provides broad protection to the State and its officers, “it does not bar a suit against a

government officer for acting outside his authority—i.e., an ultra vires suit.” Houston Belt &

Terminal Railway v. Houston, 487 S.W.3d 154, 161 (Tex. 2016); Tex. Parks & Wildlife Dep’t v.

Sawyer Trust, 354 S.W.3d 384, 393 (Tex. 2011). Here, the Plaintiffs’ requests for injunctive relief

against the individual Defendants are based upon their intentional failures to perform their

statutorily imposed duties and their intentional actions outside of their statutory duties considering

the factual circumstances of this case. Houston Belt, 487 S.W.3d at 161. The Supreme Court has

held:

… while the protections of governmental immunity remain robust, they are

not absolute. … Governmental immunity bars suits complaining of the

exercise of absolute discretion, but not suits complaining of either an

officer’s failure to perform administerial act (officers exercise of judgment

or limited discretion without reference to or in conflict with the constraints

of the law authorizing the official to act). … A public officer has no

discretion or authority to misinterpret the law. … [A]llowing such suits .

. . encourages enforcement of existing policy [for officers and directors to

properly perform their legal duties]. Houston Belt, 487 S.W.3d at 163-64.

70. Therefore, the claims for injunctive relief herein are made against both GBRA and

the individual Defendants who have acted ultra vires to their legally (statutorily) imposed statutory

duties and obligations pursuant to Article 8280-106, VERNON CIV. STAT., as amended by S.B. 626,

and § 299.41, TEX. ADM. CODE. Furthermore, since the individual Defendants’ acts and omissions

are ultra vires in nature, neither GBRA nor its insurers may use state or agency funds to provide

a defense and/or indemnity to those individuals in this suit. Id.

29

(2) Probable and Imminent Injury:

71. The infliction of real and immediate injury is not only possible, but it is actually a

fact that the property owners will be damaged as follows:

GBRA has determined to take this drastic action without consideration for

and reliance upon appropriate, independent engineering studies pertaining

to the irreparable harm and damages that will be suffered by the Plaintiffs

with regard to the dewatering plan, to wit: damage to the environment,

damage to 100 year old bald Cypress trees lining the lakes/reservoirs,

damage to flora and fauna, inadequate time for the Plaintiffs to plan for and

to take actions to protect lake front improvements including but not limited

to bulkheads, docks, decks, boat houses and other waterfront improvements,

damages to property values and the loss of the Plaintiffs’ right to enjoy their

improved, real property for the purposes those properties were improved as

a result of GBRA’s unreasonable interference with same.

72. Attached hereto are the following documents which support the Plaintiffs’

Application:

Exhibit Document

C GBRA Engineering, Public Safety & Community

Communications;

D Dunlap Spillgate Hinge Inspection Report dated

August 13, 2019; and,

E Pertinents Excerpts of the June 2013 Hydraulic and

Breach Analysis

See the Fourth Verification.

(3) Irreparable Injury and Inadequate Remedy at Law:

73. Ordinarily, “[an] injury is irreparable if the injured party cannot be adequately

compensated in damages or if the damages cannot be measured by any certain pecuniary standard.

Butnaru, 84 S.W.3d at 204; Texas Indus. Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529,

588 (Tex. App.—Houston [1st Dist] 1992) (finding no adequate remedy at law when potential

damages cannot be calculated).

30

74. Because the requested restraining order and injunction is intended to protect the

Plaintiffs’ enjoyment of their improved, real properties which has been unreasonably interfered

with by GBRA, the inadequacy of any legal remedy is presumed. Section 65.011(3) and (5), Tex.

Civ. Prac. Rem. Code.

75. The concerns expressed above easily exceed the type of irreparable injury needed

to justify preliminary injunctive relief. See Sonwalkar v. St. Luke’s Sugarland P’ship, LLP, 394

S.W.3d 186, 201 (Tex. App.—Houston [1st Dist.] 2012); Guardian Sav. & Loan Ass’n v. Williams,

731 S.W.2d 107-108 (Tex. App.—Houston [1st Dist.] 1987); Lifeguard Benefit Servs, Inc. v. Direct

Med. Network Solutions, Inc., 308 S.W.3d 102, 112 (Tex. App.—Ft. Worth 2010)

76. In light of the foregoing concerns, the likelihood of success, and the probability of

imminent and irreparable harm, a temporary restraining order and injunction while this suit is

pending is necessary to stay the hand of GBRA and its directors/officers from any actions to de-

water the reservoirs at issue, which would adversely affect the Plaintiffs’ longstanding rights to

use and enjoy their improved, real properties. A temporary restraining order and temporary

injunction are merely needed to preserve the status quo until such time as the question of GBRA’s

statutory duties and intentional actions to disregard those duties vis-à-vis the reservoirs at issue

can be determined by the civil courts.

Bond:

77. Rule 684, Tex. R. Civ. P. states in pertinent part the following:

Where the temporary restraining order or temporary injunction is against

the State, a municipality, a State agency, or a subdivision of the State in its

governmental capacity, and is such that the State, municipality, State

agency, or subdivision of the State in its governmental capacity, has no

pecuniary interest in the suit and no monetary damages can be shown, the

bond shall be allowed in the sum fixed by the Judge, and the liability of the

applicant shall be for its face amount is the restraining order or temporary

injunction shall be dissolved in whole or in part.

78. In this situation, GBRA has been sued as a “State agency” and as a “subdivision of

31

the State in its governmental capacity.” GBRA has no money damages which can be shown.

Therefore, Rule 684 is applicable and a cash bond of $100 posted by the Plaintiffs will be

sufficient.

79. The Plaintiffs request a hearing on their petition for temporary injunction within

fourteen days. It is specifically stated that this application for restraining order is limited solely to

GBRA’s intention to dewater all of the remaining four reservoirs at issue herein commencing on

September 16, 2019. The Plaintiffs reserve the right to move for both temporary restraining orders

and/or temporary injunctions as noted in para. 40, supra.

CONDITIONS PRECEDENT

80. Paragraphs 2 through 79 are incorporated herein for all intents and purposes as if

set forth verbatim.

81. All conditions precedent to the Plaintiffs’ right to bring this action and to assert all

causes of action noted herein have been met and fully satisfied.

JURY DEMAND

82. Plaintiffs request and demand a right to a trial by jury under Art. I, Section 15 of

the Texas Constitution and has made this demand for a jury trial at least thirty days before the date

this case is set for trial in accordance with Rule 216, Tex. R. Civ. P. Plaintiffs have tendered and

paid the $40.00 jury fee required by Section 51.604, Tex. Gov’t. Code.

PRODUCTION OF DOCUMENTS

83. Plaintiffs place the Defendants on notice that the Plaintiffs intend to use any

documents produced by the Defendants for any pre-trial proceeding or at trial. Defendants were

also notified on July 2, 2019 of this litigation and therefore, the Defendants were required to place

a litigation hold on all relevant documents.

32

REQUEST FOR DISCLOSURE

84. Plaintiffs request that the Defendants disclose all information and materials

described in Rule 194.2, Tex. R. Civ. P.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray for the relief specified

above and for such other and further relief, at law and in equity, to which they may show

themselves justly entitled.

Respectfully submitted,

KELLY, SUTTER & KENDRICK, P.C.

By: /s/ J. Douglas Sutter

J. DOUGLAS SUTTER

State Bar No. 19525500

3050 Post Oak Blvd., Suite 200

Houston, Texas 77056

Telephone: (713) 595-6000

Facsimile: (713) 595-6001

Email: dsutter@ksklawyers.com

ATTORNEY FOR PLAINTIFFS

OF COUNSEL:

JAMIE GRAHAM & ASSOCIATES, PLLC

Jamie L. Graham

State Bar No. 24027335

301 South St. Mary’s St., Suite 2500

San Antonio, Texas 78205

Telephone: (210) 308-6448

Facsimile: (210) 308-5669

Email: jamie@jamiegrahamlaw.com

THESTATEOFTEXAS § §

GUADALUPE COUNTY §

FIRST VERIFICATION

Before me, the undersigned Notary Public, on this day personally appeared Jimmy Williams, a person whose identity is known to me. After I administered an oath to affiant, he testified:

1. My name is Jimmy Williams. I am over the age of 18, of sound mind, a citizen of the United States and fully capable of making this verification. I am one of the Plaintiffs in the referenced cause of action.

2. I have read the PLAINTIFFS' VERIFIED ORIGINAL PETITION AND APPLICATION FOR TEMPORARY RESTRAINING ORDER, TEMPORARY AND PERMANENT INJUNCTION AND FOR DAMAGES to be filed on behalf of the Plaintiffs. I am familiar with the facts alleged therein.

3. I am the owner of improved, lakefront real property located on Lake McQueeney (the Guadalupe River) in Guadalupe County, Texas which improvements include a house, bulkhead, boat house and decking. As with many such lots, there are 90 year old, 80+ ft. bald cypress trees on my lot which only grow in this location due to their immediate approximation to the retained waters of the reservoir. I purchased this property in April, 1999 and have paid substantial ad valorem taxes thereon which support the local governments and school districts.

4. Due to my long-time ownership of the noted property, I am as qualified or competent as one can be to personally attest to the accuracy of the factual allegations made by the Plaintiffs in their Petition.

5. I attest to the truthfulness of the statements and factual allegations in the Petition made with regard to those contained in paras. 3, 8-10, 27-33, 44 and 55 in the Original Petition. Based upon a reasonable review of the documents noted in this paragraph, together with my own familiarity with the general subject matter, the statements and factual allegations made in the Petition are also true and correct.

6. Attached as Exhibit "B" to the Original Petition is a true and correct copy of the undated letter that I received from GBRA via certified mail, return receipt requested at my home address in Guadalupe County during the week of August 12, 2019, advising that beginning on September 16, 2019, the remaining reservoirs on the Guadalupe River controlled by GBRA will be de-watered.

7. My property is located approximately half-way between where Lake McQueeney begins and ends on River Springs Drive. During the failure of the Dunlap dam in May, 2019, and after I returned from golf, I noticed that the water had risen no more than 8" with no resultant damages or flooding.

Further affiant sayeth not. '

At:.J.-~"\­

Swom to and subscribed before me this-~--~ _ day o(Sei*ember, 2019.

NOT PyJ{ Y PUBLIC IN AND FOR THE ~'rATE OF TEXAS

My Commission Expires: ELIZABETH A. SANTOS Notary Public ® STATE OF TEXAS . . "'

My Comm .,. ":::} • 10# 130671012

·····YYYYy········· ..

2

SECOND VERIFICA TIO~

THE STATE OF TEXAS § §

GUADALUPE COUNTY §

Before me, the undersigned Notary Public, on this day personally appeared Jenny Cox, a person whose identity is known to me. After l administered an oath to affiant, she testified:

I. My name is Jenny Cox. l am over the age of 18, of sound mind, a citizen of the United States and fully capable of making this verification. I am one of the Plaintiffs in the referenced cause of action.

2. I have read the PLAINTIFFS' VERIFIED ORIGINAL PETITION AND APPLICATION FOR TEMPORARY RESTRAINING ORDER, TEMPORARY AND PERMANENT INJUNCTION AND FOR DAMAGES to be filed on behalf of the Plaintiffs. I am familiar with the facts alleged therein.

3. Since 2007, I am the owner of improved, lakefront real property located on Lake McQueeney (the Guadalupe River) in Guadalupe County, Texas on Lakeridge Dr. which improvements include a house, bulkhead, boat house and decking. 1 purchased this property in approximately twelve years ago and have paid substantial ad valorem taxes thereon which support the local governments and school districts.

4. My property is located at 328 Lakeridge Dr. in the Lake Ridge Subdivision located on the main, wide body of Lake McQueeney. During the failure of the Dunlap dam in May, 2019, the water level did not appreciably rise. On the day of the failure, I was infonned of same by GBRA and therefore stayed home to ensure that my property would not be damaged. While remaining home, I could discern no appreciable rise in the water level. Obviously. there was no resultant damage or flooding to IllY. proP.erty.

Further affiant sayeth not (L (kt f{ "/) [Jf<L, Jem~

Clua-tW-i Sworn to and subscribed before me this .;J..q day ofSq:rtalntca , 2019.

~Jk<.L ~ \_,lA...{..A.4 .) TARY PUBLIC IN AND FOR

THE STATE OF TEXAS fl!!!!f.:.!!!·.t*l.~~.!!!!:.·,····~.~.:,·!!!!·.:~~-~-~!!!!.·.1!!!!!!!!!!!!M~y~~~ot~!~!!!8!!!1~!!!~R!!!2~!!!~!!!;54!!!2!!!!!!!!!!!!/I My Commission Expires: ... " .~~ Expires January a. 2021

,,,,. .... --( J If o& /ole;& I ~I

THESTATEOFTEXAS § §

GUADALUPE COUNTY §

THIRD VERIFICATION

Before me, the undersigned Notary Public, on this day personally appeared Karen S. Sutter, a person whose identity is known to me. After I administered an oath to affiant, he testified:

1. My name is Karen S. Sutter. I am over the age of 18, of sound mind, a citizen of the United States and fully capable of making this verification. I am one of the Plaintiffs in the referenced cause of action.

2. I have read the PLAINTIFFS' VERIFIED ORIGINAL PETITION AND APPLICATION FOR TEMPORARY RESTRAINING ORDER, TEMPORARY AND PERMANENT INJUNCTION AND FOR DAMAGES to be filed on behalf of the Plaintiffs. I am familiar with the facts alleged therein.

3. I am the owner of improved, lake front real property located on Lake McQueeney (the Guadalupe River) in Guadalupe County, Texas which improvements include a house, bulkhead, boat house and decking. As with many such lots, there are 90 year old, 80+ ft. bald cypress trees on my lot which only grow in this location due to their immediate approximation to the retained waters of the reservoir. We have owned two properties on Lake McQueeney since 1992 and have paid substantial ad valorem taxes thereon which support the local governments and school districts.

4. Due to my long-time ownership of the noted property, I am as qualified or competent as one can be to personally attest to the accuracy of the factual allegations made by the Plaintiffs in their Petition.

5. I attest to the truthfulness of the statements and factual allegations in the Petition made with regard to those contained in paras. 3, 8-10, 27-33, 44 and 55 in the Original Petition. Based upon a reasonable review of the documents noted in this paragraph, together with my own familiarity with the general subject matter, the statements and factual allegations made in the Petition are also true and correct.

6. Attached as Exhibit "B" to the Original Petition is a true and correct copy of the undated letter that I received from GBRA via certified mail, return receipt requested at my home address in Guadalupe County during the week of August 12, 2019, advising that beginning on September 16, 2019, the remaining reservoirs on the Guadalupe River controlled by GBRA will be de-watered.

7. After both the 1998 and the 2002 floods, GBRA quickly and substantially lowered the level of Lake McQueeney, which caused damages to both our

bulkhead and improvements as well as our neighbors' bulkheads and improvements.

Further affiant sayeth not.

Sworn to and subscribed before me this --~..:...._~_ day of September, 201 9.

THE STATE OF TEXAS

My/Commission Expires:

~ g ((_o'(__ L

FOURTH VERIFICATION

THE STATE OF TEXAS § §

GUADALUPE COUNTY §

Before me, the undersigned Notary Public, on this day personally appeared J. Douglas Sutter, a person whose identity is known to me. After I administered an oath to affiant, affiant testified:

1. My name is J. Douglas Sutter. I am over the age of 18, of sound mind, a citizen of the United States and fully capable of making this verification. I am one of the Plaintiffs in the referenced cause of action.

2. I am an attorney licensed to practice law in the United States District Court for the Southern District of Texas, the United States District Court for the Eastern District of Texas, the United States District Court for the Western District of Texas, the United States District Court for the Northern District of Texas, the Supreme Court of Texas, the United States Courts of Appeals for the Fifth and Eleventh Circuits and the United States Supreme Court. I am a shareholder, officer and director of the firm of Kelly, Sutter, & Kendrick, P.C., 3050 Post Oak Blvd., Suite 200, Houston, Texas 77056.

3. I am lead counsel of record for the Plaintiffs in this case.

4. Attached to the Plaintiffs' Verified Original Petition are numerous Exhibits. Those Exhibits are the following and indicated next to each one is the reason(s) for the admissibility thereof:

Exhibit No.

c

D

E

Document

GBRA Engineering, Public Safety & Community Communications

Dunlap Spillgate Hinge Inspection Report dated August 13, 2019

Pertinent Excerpts from the June 2013 Hydraulic and Breach Analysis

Document Date Basis for Admission

2019 It was produced by GBRA

August 13, 2019 It was commissioned and produced by GBRA

June 2013 It was commissioned and produced by GBRA

Further affiant sayeth not.

NOTARYPUBLi r THE STATE OF