Imagine living in a country where the government can store water in your home one time for free.  They can destroy your property.  They can ruin your furniture.  They can bring snakes into your home.  They can destroy your privacy and your sanctity.  And you can’t do anything about it.  Well, it is happening here in Harris County.

            A serious attack on private property rights has been launched by Harris County and the Harris County Flood Control District.  Harris County has won a motion for summary judgment in state district court before Visiting Judge Eric Andell that says, in effect, that homeowners flooded by the actions of the Harris County Flood Control District have no right to sue Harris County under the Texas Constitution. Homeowners throughout Harris County should be concerned about this action by Harris County.

This attack on property rights came to light in litigation by White Oak Bayou homeowners who were flooded in 1998 by six to eight inches of rain associated with Tropical Storm Frances.  A substantial body of evidence, including testimony by Flood Control District personnel and experts hired by the homeowners, indicates that the flood was caused by the failure of Harris County Flood Control District to construct a plan for White Oak Bayou improvements called the “Pate Plan”. 

The “Pate Plan” was approved by Harris County Commissioners in 1984 and allowed an increase in runoff due to upstream development but included construction of flood control relief.  This plan initially proposed to allow up to 2,500 acres of new development in upstream portions of White Oak Bayou.  These developments would be allowed to dump their stormwater into White Oak Bayou, increasing flood flows by 50%.  These developments paid Harris County $3000 per acre for Harris County to construct a flood control project for White Oak Bayou that was also a part of the “Pate Plan”.   In this manner, the developers avoided constructing retention ponds within their own developments. 

The interim “Pate Plan” flood control project consisted of four phases of channel widening and deepening.  The first phase was in lower White Oak Bayou, from the confluence with Buffalo Bayou to Cole Creek.  The second phase extended from Cole Creek upstream to North Houston-Rosslyn and the third phase extended from North Houston Rosslyn to just below Beltway 8.  The fourth phase involved construction of a bypass channel around Jersey Village to just below Beltway 8.  Over the long term, flood detention ponds were to be constructed to provide additional flood control relief for additional future upstream development.  This was the ultimate “Pate Plan”.

The 1998 flood on White Oak Bayou primarily was due to Harris County and Harris County Flood Control District allowing upstream development but failing to construct adequate flood control relief under the interim Pate Plan.  HC and HCFCD allowed the 2500 acres of new development to be constructed and allowed the 50% increase in runoff into White Oak Bayou but did not construct phases 3 and 4 of the interim Pate Plan.  Instead, HC and HCFCD put a partial dam across White Oak Bayou just above North Houston-Rosslyn to prevent the flood from moving further downstream.  In other words, HC and HCFCD allowed an increase in the flooding on White Oak Bayou and did not construct the channel improvements that were necessary to carry this increased flow and in fact obstructed the flow at the bottom of the Phase 3 area.

In 1998, extensive flooding occurred in Woodland Trails, Woodland Trails West, Woodland Oaks II, Oak Wood Forest and Jersey Village.  These were areas adjacent to Phases 3 and 4 and which would have been protected if the flood control projects had been completed.  Most of these homes had never flooded before.  Water levels in the homes ranged from 6 to 18 inches.  Many of these homeowners did not have flood insurance because many of these homes were not shown to be in the 100-year flood plain of White Oak Bayou prior to the flood.

In 1999, a suit was filed against Harris County and Harris County Flood Control District, among others, in an attempt to recover the losses that had been suffered by these homeowners.  The Texas Constitution provides a basis for suing a government if that government causes a “damaging” or a “taking” of private property for public purposes.  Plaintiffs argued that by allowing the development and runoff increase and by not building the flood control channel, plaintiffs’ properties were essentially converted to temporary retention ponds.  As such, it was the position of the plaintiffs that their properties were “damaged” for public purposes in violation of the Texas Constitution by becoming temporary retention ponds.

Harris County responded to this claim by filing a Motion for Summary Judgment.  In this MSJ and in oral argument before Judge Andell, Harris County argued that it should not have to pay the homeowners for flooding their properties.  Among the arguments made by Harris County were the following:

1.                  Harris County argued that they had to specifically intend to take, use or damage plaintiffs homes for flood control purposes in order for plaintiffs to be able to recover damages.  Essentially, Harris County was arguing that the plaintiffs had to show that Harris County specifically intended to flood their houses.  It was not enough that the result of the failure to build the Pate Plan was to cause flooding of the plaintiffs’ homes.  Harris County had to intend it.

2.                  Harris County argued that they had to flood plaintiffs more than once in order for there to be any specific intent.  They argued that a single flood – an isolated flooding event - caused by Harris County could not give rise to a claim for damages.  Instead, they stated that these damages are only compassable by a tort action.  Under Texas law, tort actions for flooding cannot be brought against governmental units. 

3.                  Harris County has also argued that if they fix the problem or work on the problem that there is no showing of specific intent and there is no liability to the plaintiffs.  No time limit was offered by Harris County to limit this “working on the problem” defense. 

Judge Andell ruled on behalf of Harris County on June 11, 2001, immediately following the flooding associated with Tropical Storm Allison, a storm that dropped much more rain than did Frances in the 1998 flooding on White Oak Bayou.

            The position taken by Harris County is a threat to every subdivision, homeowners association and homeowner in Harris County.  Property rights are supposed to be a fundamental right in Texas.  Harris County has made a mockery of your right to be free from governmental intervention.  Your home can be used for flood retention as long as Harris County did not “ specifically intend” to use it and even then, Harris County has to use it more than once according to their arguments. 

            The position taken by Harris County is wrong.  It is contrary to the property rights provisions of the Texas Constitution.  The ruling by Judge Andell is wrong.  It is contrary to the property rights provisions of the Texas Constitution. The plaintiffs in the White Oak Bayou litigation are planning to take this case to the Court of Appeals and to the Texas Supreme Court if they have to.  But you need to know that this problem exists.

            At least in part, this attack on private property comes because Harris County does not have enough money to spend on flood-related problems.  The “Pate Plan” was not constructed because there was not enough money.  Many floodwater detention areas have not been constructed because of lack of funds.  Yet, Harris County just last week loaned Fort Bend County money to build a new road project to support suburban growth.  Additionally, Harris County plans to issue almost $1 billion worth of bonds to build the new container port at Bayport even though a private company wants to build the port at no cost to taxpayers.   

The priorities and principles of Harris County are simply wrong.  It is the picture of a governmental unit out of control, without guidance or focus.  Our property should be made safe from the government’s flood and Harris County should get these spending priorities right.