Cause No.

____________

REBA OGLETREE, et. al., IN THE DISTRICT COURT OF

Plaintiffs,
v. HARRIS COUNTY, TEXAS

THE TEXAS WATER DEVELOPMENT

BOARD AND THE SAN JACINCTO
RIVER AUTHORITY,
_________ JUDICIAL DISTRICT
Defendants.

PLAINTIFFS ORIGINAL PETITION, REQUEST FOR DISCLOSURE,

AND APPLICATION FOR A TEMPORARY INJUNCTION

Plaintiffs file this Original Petition, Request for Disclosure, and Application

for a Temporary Injunction, and respectfully show this Honorable Court as follows:

I. DISCOVERY PLAN

1.1 Discovery should be conducted under Discovery Control Plan Level 3

pursuant to Texas Rule of Civil Procedure 190.4.

II. PARTIES

2.1 Plaintiff Reba Ogletree resides at 5010 Hickory Green Court, Kingwood,

TX 77345. Ms. Ogletrees residence was severely damaged by Defendants intentional

flooding.

2.2 Plaintiff Dana Gautier resides at 2614 River Lilly Drive, Kingwood, TX

77345. Ms. Gautiers residence was severely damaged by Defendants intentional

flooding.

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 2.3 Plaintiffs Michael Ferris and Janelle Gordon reside at 4615 Elmstone

Court, Kingwood, TX 77345. Mr. Ferris and Ms. Gordons residence was severely

damaged by Defendants intentional flooding.

2.4 Plaintiffs Eric and Paula Lee reside at 2606 River Lilly Drive, Kingwood,

TX 77345. Mr. and Mrs. Lees residence was severely damaged by Defendants

intentional flooding.

2.5 Plaintiffs Neal and Marisa Hamilton reside at 2610 River Lilly Drive,

Kingwood, TX 77345. Mr. and Mrs. Hamiltons residence was severely damaged by

Defendants intentional flooding.

2.6 Plaintiffs Charles and Ann Meili reside at 2215 Pleasant Creek Drive,

Kingwood, TX 77345. Mr. and Mrs. Meilis residence was severely damaged by

Defendants intentional flooding.

2.7 Plaintiff Lisa Burris resides at 1719 Dominica Drive, Kingwood, TX

77345. Ms. Burriss residence was severely damaged by Defendants intentional

flooding.

2.8 Plaintiffs Brian and Tricia Thomas reside at 2839 Kings Retreat Circle,

Kingwood, TX 77345. Mr. and Mrs. Thomass residence was severely damaged by

Defendants intentional flooding.

2.9 Plaintiffs Royce and Monica Click reside at 2810 Halton Court,

Kingwood, TX 77345. Mr. and Mrs. Clicks residence was severely damaged by

Defendants intentional flooding.

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 2.10 Plaintiffs David and Carmen Boyd reside at 4518 Mulberry Park Lane,

Kingwood, TX 77345. Mr. and Mrs. Boyds residence was severely damaged by

Defendants intentional flooding.

2.11 Plaintiffs Jon and Darla Davies reside at 2319 Pleasant Creek Drive,

Kingwood, TX 77345. Mr. and Mrs. Davies residence was severely damaged by

Defendants intentional flooding.

2.12 Plaintiffs Tim Garfield and Melda Adams reside at 1903 Forest Garden

Drive, Kingwood, TX 77345. Mr. Garfield and Ms. Adamss residence was severely

damaged by Defendants intentional flooding.

2.13 Plaintiffs Johannes and Saori Schmal reside at 19003 Aquatic Drive,

Humble, TX 77346. Mr. and Mrs. Schmals residence was severely damaged by

Defendants intentional flooding.

2.14 Plaintiffs Roel Billarreal, Maria Billarreal, and their immediate family

reside at either 923 Meek Road or 1620 N. Houston Avenue, Humble, TX 77338.

These residences were severely damaged by Defendants intentional flooding.

2.15 Plaintiffs Ann and Jerry Strickler reside at 5619 Royal Creek Trail,

Kingwood, TX 77345. Mr. and Mrs. Strickers residence was severely damaged by

Defendants intentional flooding.

2.16 Plaintiffs Robert Steven and Josefina Green reside at 3031 Brook Shore

Court, Kingwood, TX 77345. Mr. and Mrs. Greens residence was severely damaged

by Defendants intentional flooding.

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 2.17 Plaintiffs Patrick and Connie Kirbow reside at 2002 Wind Creek Drive,

Kingwood, TX 77345. Mr. and Mrs. Kirbows residence was severely damaged by

Defendants intentional flooding.

2.18 Plaintiffs Shannon and Brian Routte reside at 1311 Trailwood Village

Drive, Kingwood, TX 77345. Mr. and Mrs. Routtes residence was severely damaged

by Defendants intentional flooding.

2.19 Plaintiffs William and Pamela Boyd reside at 7 Summit Lake Drive,

Kingwood, TX 77339. Mr. and Mrs. Boyds residence was severely damaged by

Defendants intentional flooding.

2.20 Plaintiff John H. McClellan resides at 10 McClellan Circle, Kingwood,

TX 77339. Mr. McClellans residence was severely damaged by Defendants

intentional flooding.

2.21 Plaintiffs Douglas Scherr and Nichelle A. Newman reside at 1211

Mayfair Way, Kingwood, TX 77345. Mr. Scherr and Ms. Newmans residence was

severely damaged by Defendants intentional flooding.

2.22 Plaintiffs Matthew and Eva Vandergrifft reside at 1327 Royal Sands

Lane, Kingwood, TX 77345. Mr. and Mrs. Vandergriffts residence was severely

damaged by Defendants intentional flooding.

2.23 Plaintiffs Majorie and Joseph Salazar reside at 4535 Mulberry Park

Lane, Kingwood, TX 77345. Mr. and Mrs. Salazars residence was severely damaged

by Defendants intentional flooding.

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 2.24 Plaintiffs Jack and Sandra Roth reside at 8 Shorelake Drive, Kingwood,

TX 77339. Mr. and Mrs. Roths residence was severely damaged by Defendants

intentional flooding.

2.25 Plaintiffs David and Marianne Carpenter reside at 6 Summit Lake

Drive, Kingwood, TX 77339. Mr. and Mrs. Carpenters residence was severely

damaged by Defendants intentional flooding.

2.26 Plaintiffs Clinton and Catherine Stephen reside at 1202 Eversham Way,

Kingwood, TX 77339. Mr. and Mrs. Stephens residence was severely damaged by

Defendants intentional flooding.

2.27 Plaintiffs Albert and Janet Harvey reside at 1210 Mayfair Way,

Kingwood, TX 77345. Mr. and Mrs. Harveys residence was severely damaged by

Defendants intentional flooding.

2.28 Plaintiffs Bruce and Carolyn Wise reside at 2618 Royal Circle Drive,

Kingwood, TX 77339. Mr. and Mrs. Wises residence was severely damaged by

Defendants intentional flooding.

2.29 Plaintiffs Mark and Nicole Green reside at 21 Shorelake Drive,

Kingwood, TX 77339. Mr. and Mrs. Greens residence was severely damaged by

Defendants intentional flooding.

2.30 Plaintiffs Rhonda and Gary Maple reside at 20165 River Ridge Drive,

Porter, TX 77365. Mr. and Mrs. Maples residence was severely damaged by

Defendants intentional flooding.

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 2.31 Plaintiff Ray Astraquillo resides at 1703 Dominica Drive, Kingwood, TX

77345. Mr. Astraquillos residence was severely damaged by Defendants intentional

flooding.

2.32 Plaintiffs Brad and Emily Laney reside at 4807 Pine Garden Drive,

Kingwood, TX 77345. Mr. and Mrs. Laneys residence was severely damaged by

Defendants intentional flooding.

2.33 The use of Plaintiffs in this Petition refers to those individuals listed

in paragraphs 2.1-2.32. The use of Properties in this petition refers to those

properties listed in paragraphs 2.1-2.32.

2.34 Defendant Texas Water Development Board (hereafter referred to as the

Texas Water Board) is a government entity, which may be served through its

administrative head, Jeff Walker, at its corporate headquarters located at 1700

Congress Avenue, Austin, TX 78701.

2.35 Defendant San Jacinto River Authority (hereafter referred to as the

SJRA) is a government entity, which may be served through its administrative

head, Jace A. Houston, at its corporate headquarters located at 1577 Dam Site Road,

Conroe, TX 77304.

III. JURISDICTION AND VENUE

3.1 Plaintiffs are seeking millions of dollars in damages. This amount is

within the jurisdictional limits of this Court. This amount is above $200,000, which

makes jurisdiction proper in this Court pursuant to Tex. Govt. Code. 25.1032 &

25.003(c).

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 3.2 Pursuant to the mandatory venue provision of Tex. Civ. P. & Rem. Code

15.011, venue is proper here because this an action for recovery of damages to real

property and the damaged property is located in Harris County, Texas. Pursuant to

Tex. Civ. P. & Rem. Code 15.002, venue is also proper here because all or part of

the acts giving rise to these claims occurred in Harris County, Texas.

IV. FACTUAL SUMMARY

4.1 Plaintiffs are real property owners. Plaintiffs Properties are located in

the Kingwood, Atascocita, and Humble areas.

4.2 Defendants are two Texas governmental entities, which were created

pursuant to Article XVI, 59(b) of the Texas Constitution. The Texas Water Board

is charged with the leadership, planning, financial assistance, information, and

education for the conservation and responsible development of water for Texas.1 The

Board controls the SJRA. The SJRAs webpage states that its primary focus has

always been and will continue to be water supply development.2

4.3 In 1968, the SJRA partnered with the Texas Water Board and the City

of Houston to jointly construct a water supply reservoir, Lake Conroe, on the West

Fork of the San Jacinto River.3 This water supply reservoir was created by

constructing the Lake Conroe Dam, which works with several levees to hold water in

the Lake. The Dam contains a spillway with several gates.4 These gates are capable

1 Exhibit A.
2 Exhibit B.
3Id.
4Id.

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of letting water out at a rate of 150,000 cubic feet per second.5 The SJRA and the

Texas Water Board control the rights to maintain and use the reservoir.6

Defendants jointly enacted regulations so they would have a direct say in how the

Lake Conroe Dam is operated and, thus, how much water from the spillway is

released.

4.4 On or about June 5, 1970, Defendants secured an easement, which

allows them to collect and store water in the Lake Conroe Reservoir up to 207 feet

above mean sea level.7 This is six feet above the current average height of the Lake.8

Based on the size of Lake Conroe (21,000 acres), Defendants easement allows them

to collect a truly tremendous amount of water.9 Sometime after the easement was

enacted and secured, Defendants instituted an engineering plan to govern how this

water collection can be released.10 Pursuant to the Texas Public Information Act,

Plaintiffs requested copies of documents relating to the creation of the easement, the

easement itself, and the engineering plan.11 As of the date of this filing, Defendants

have refused to produce these documents.

4.5 From at least 1994 to the present, Defendants have used the Lake

Conroe Dam, their regulatory easement, and their regulatory engineering plan to

intentionally and repeatedly flood Kingwood, Atascocita, Humble, and the

5 Id.
6 Exhibit C.
7 See,e.g., Exhibit D.
8 Exhibit B.
9 Id.
10 Exhibit E.
11 Exhibit F.

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surrounding areas. These floods have been recurrent and intermittent, happening

during (at least) the following time periods: (1) October of 1994 (2) May of 2000

(3) June of 2001, (4) May of 2004, (5) March of 2016, (6) April of 2016, and

(7) August/September of 2017. These catastrophic floods were orchestrated to serve

the public uses of maintaining and protecting the Lake Conroe Reservoir, preserving

the water rights to the Lake Conroe Reservoir, and maintaining and protecting the

Lake Conroe Dam.12 These floods were further orchestrated to serve the public uses

of saving certain other areas from flooding, including municipal areas owned and

operated by the SJRA.13

4.6 Defendants intentional floods have permanently and irreparably

damaged Plaintiffs Properties. Plaintiffs homes have been inundated with sewage

water. Plaintiffs personal belongings have been destroyed. Plaintiffs have been

constructively evicted from their homes, and many are still not able to go home.

Plaintiffs lives have been upended, causing severe physical and emotional damage to

them and their families. Defendants intentional floods are the direct and proximate

cause of this damage.

4.7 Defendants intentional floods have had far reaching consequences to

Plaintiffs communities, and the value of their Properties. Defendants have turned

pristine homes into mold hazards. Defendants have turned family neighborhoods

into wastelands. Kingwood High School (arguably the largest draw for new residents)

12 Exhibit G.
13 Exhibit H.
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has been forced to close its doors. Local businesses have been forced to shut down.

These businesses include doctors offices, banks, gyms, and restaurants, all of which

are establishments that form the cornerstone of the American way of life. Hazardous

chemicals are being sprayed in the air in an effort to control the onslaught of

mosquitos created by the floods. The value of Plaintiffs Properties has not just been

diminished. It has been destroyed.

4.8 The Lake Conroe Reservoir and Lake Conroe Dam are located

approximately ninety miles from the Gulf of Mexico. The Gulf has proven to be a hot

bed for hurricane formation and landing. This trend will continue long into the

future. These hurricanes bring with them heavy rainfall, which breeds opportunities

for Defendants to use their powers and regulations to intentionally flood the

Plaintiffs.14 Future flooding of Plaintiffs Properties is inevitable.

V. CAUSES OF ACTION

A. Physical and Regulatory Inverse Condemnation without Just

Compensation in Violation of the Texas Constitution

5.1 Plaintiffs incorporate the preceding paragraphs by reference.

5.2 Pursuant to Article I, 17 of the Texas Constitution (the Texas Takings

Clause), Defendants committed unconstitutional physical and regulatory takings

through their construction, maintenance, operation, and control of the Lake Conroe

Reservoir and the Lake Conroe Dam.

14It is important to note that Defendants intentional flooding is different in quality

and character than what occurs from rainfall alone.
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 5.3 Plaintiffs had a vested interest in their Properties at the time of

Defendants taking. Plaintiffs owned their properties, and lived in the homes built

on their Properties. Plaintiffs further had a vested property interest in maintaining

the value of their homes by protecting their communities and the areas surrounding

their Properties.

5.4 Defendants intentionally performed certain acts and/or intentionally

failed to perform necessary acts in the exercise of their eminent-domain authority.

These acts include, but not are not limited to, (1) operating the Lake Conroe Reservoir

and Dam in a manner that guaranteed the flooding of Plaintiffs Properties, and/or

(2) failing to perform necessary acts in the operation of the Lake Conroe Reservoir

and Dam, which directly caused severe flooding of Plaintiffs Properties. Defendants

intentional acts were the proximate cause of physical takings of Plaintiffs Properties.

These takings were for public uses, including protecting the Lake Conroe Reservoir

(and the resulting water rights) and protecting the Lake Conroe Dam. There has

been no compensation to Plaintiffs, which by definition is inadequate. Plaintiffs did

not consent to Defendants taking. Most Plaintiffs were not even notified of

Defendants intent to flood Plaintiffs Properties and only found out about Defendants

takings when they occurred.

5.5 Defendants have further enacted regulations, including, but not limited

to, the Lake Conroe Easement and Lake Conroe Dam engineering plan,15 which (1)

resulted in an actual physical invasion of Plaintiffs Properties, (2) denied Plaintiffs

15 Exhibit E.
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all economically viable use of their Properties, (3) amounted to a land-use exaction,

and/or (4) unreasonably interfered with Plaintiffs rights to use and enjoy their

Properties.

5.6 Defendants unconstitutional takings are a direct and proximate cause

of Plaintiffs damages described below. Pursuant to Article I, 17 of the Texas

Constitution, the damages below amount to just compensation and should be

awarded to Plaintiffs for Defendants violations of the Texas Takings Clause.

B. Physical and Regulatory Inverse Condemnation in Violation of the

United States Constitution

5.7 Plaintiffs incorporate the preceding paragraphs by reference.

5.8 The Fifth Amendment to the United States Constitution instructs that

private property may not be taken for public use, without just compensation, and

this law is applied to the Defendants through the Fourteenth Amendment to the U.S.

Constitution. U.S. Const. Amendments V & XIV. These rights protect all Americans,

including the Plaintiffs in this lawsuit.

5.9 As described above, Defendants have committed physical and regulatory

takings pursuant to the Fifth Amendment to the U.S. Constitution. Defendants

failure to pay just compensation to Plaintiffs for these takings violates the Fifth

Amendment. Plaintiffs should be awarded the damages described below as just

compensation for Defendants violations.

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C. Texas Takings Clause Law Is Unconstitutionally Narrow

5.10 Plaintiffs incorporate the preceding paragraphs by reference.

5.11 To the extent Texas takings law seeks to narrow the rights guaranteed

to the Plaintiffs by the Fifth and Fourteenth Amendments to the United States

Constitution, this law is unconstitutional and must be overturned.

D. Governmental Immunity Has Been Waived

5.12 The takings clauses of the Texas and United States Constitutions are

well-known exceptions to the doctrine of governmental immunity. A collection of

cases discussing these exceptions are cited here and incorporated by reference.16

Pursuant to the authorities in f.n.16, governmental immunity does not apply to bar

Plaintiffs claims and/or their absolute right to receive just compensation for the

impermissible takings outlined in this Petition. Defendants have waived all rights

to assert governmental immunity.

VI. DAMAGES AND JUST COMPENSATION

6.1 As a direct and proximate result of the causes of action described above,

Plaintiffs are entitled to damages in an amount necessary to make them whole,

including, but not limited to, the following: (1) actual damages required to restore

16Kirby Lake Dev. v. Clear Lake City Water, 321 S.W.3d 1, 5 (Tex. App.Houston
[14th Dist.] 2008), aff'd sub nom. Kirby Lake Dev., Ltd. v. Clear Lake City Water
Auth., 320 S.W.3d 829 (Tex. 2010)(There is a clear and unambiguous waiver of
immunity from suit for inverse-condemnation claims within the ambit of article I,
section 17 of the Texas Constitution Therefore, governmental immunity does not
shield the Authority from a claim for compensation under the Takings Clause.); El
Dorado Land Co., L.P. v. City of McKinney, 395 S.W.3d 798, 801 (Tex. 2013)(same);
City of El Paso v. Mazie's L.P., 408 S.W.3d 13, 19 (Tex. App. 2012)(same).
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Plaintiffs Properties to their pre-flood conditions, (2) actual damages for the

diminished value in Plaintiffs Properties, (3) actual damages for all lost and/or

destroyed personal belongings (including automobiles), (4) damages to compensate

for being constructively evicted from their homes, and (5) damages to compensate for

Plaintiffs physical and mental anguish. Plaintiffs are further entitled to their

attorneys fees, costs of court, prejudgment interest, and post-judgment interest as

allowed by law and/or equity. All of these damages are necessary to justly

compensate Plaintiffs for Defendants takings.

VII. APPLICATION FOR A TEMPORARY AND

PERMANENT INJUNCTION

7.1 Plaintiffs incorporate the preceding paragraphs by reference.

7.2 Plaintiffs are entitled to a temporary injunction because they have pled

and proven: (1) a cause of action against the Defendants, (2) a probable right to the

relief sought, and (3) a probably, imminent, and irreparable injury in the interim.

See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

7.3 Plaintiffs inverse condemnation causes of action are well proven. It is

beyond reasonable dispute that Plaintiffs Properties were recently inundated by

flood, sewage filled waters. After the initial carnage, while most of Plaintiffs homes

were still filled with sewage water, the general manager of the SJRA, Jace Houston,

released a public statement where he admitted he knew the SJRAs actions would

create devastating flooding with catastrophic consequences to downstream

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areas.17 Despite this knowledge, the SJRA released the water anyway. This evidence

more than meets the intent necessary to establish an inverse condemnation claim.

See, e.g, Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004)([W]e

hold that the requisite intent [for an inverse condemnation claim] is present when a

governmental entity knows that a specific act is causing identifiable harm or knows

that the harm is substantially certain to result.).

7.4 Plaintiffs rights to receive just compensation are guaranteed by the

Constitutions for both Texas and the United States. This great State and this great

Country have a rich history of upholding their citizens constitutionally guaranteed

rights. Plaintiffs likelihood of receiving their requested relief is more than probable.

7.5 If a temporary injunction does not issue, Plaintiffs will suffer a probable,

imminent, and irreparable injury before this case is resolved. Defendants past

actions demonstrate a propensity for intentionally flooding Plaintiffs Properties.

Plaintiffs have been thrown out of their homes. Plaintiffs are currently putting

hundreds of thousands of dollars into the reconstruction of their homes so they can

finally start putting their lives back together. The upheaval to Plaintiffs lives by

another flood cannot be fixed by mere monetary compensation. An injunction is

necessary to save their livelihood and well-being.

7.6 Plaintiffs ask that the temporary injunction prohibit Defendants from

releasing water from the Lake Conroe Reservoir at the rates, which caused the recent

17Exhibit I. This video was too large to upload to the Courts electronic filing system
so it is being mailed to the Court.
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flooding of Plaintiffs Properties. The SJRA alleges its release rate was 79,100 cubic

feet per second.18 Plaintiffs move the Court to prohibit Defendants from releasing

water from the Lake Conroe Dam at this rate or higher.19

7.7 After a trial of this case, Plaintiffs move the Court for a permanent

injunction prohibiting the Defendants from controlling the Lake Conroe Reservoir

and Dam in a manner that will flood Plaintiffs Properties.

VIII. CONDITIONS PRECEDENT

8.1 All conditions precedent to Plaintiffs right of recovery and Defendants

liability have occurred or been performed.

IX. REQUEST FOR DISCLOSURE AND NOTICES

9.1 Plaintiffs request that Defendants disclose the information or material

described in Texas Rule of Civil Procedure 194. Failure to timely respond will

constitute an abuse of discovery pursuant to Texas Rule of Civil Procedure 215.

9.2 Plaintiffs give actual notice to all parties that, in accordance with Texas

Rule of Civil Procedure 193.7, all documents produced during discovery may be used

against any party in pretrial proceedings or trial without the necessity of

authenticating the document.

9.3 Pursuant to Tex. Civ. P. & Rem. Code 101.101 and any other

potentially applicable notice provisions, Plaintiffs give actual notice to the

Defendants that that the damage and injury described above happened to them, that

18 Exhibit J.
19 Exhibit K is a proposed order.
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the injuries occurred on Plaintiffs Properties, and that the injuries were caused by

Defendants flooding. Plaintiffs incorporate all paragraphs in this Petition and all

Exhibits attached to this Petition by reference here to further satisfy any potential

notice obligations.

X. REQUEST FOR PRODUCTION OF DOCUMENTS

10.1 Pursuant to Tex. R. Civ. P. 196, Plaintiffs request that Defendants

produce the documents requested in Exhibit L.

XI. JURY DEMAND

11.1 Plaintiffs demand a trial by jury and tender the appropriate fee with

this Petition.

XII. PRAYER

12.1 For the reasons stated in this Petition, Plaintiffs ask that Defendants be

cited to appear and that, upon final hearing, Plaintiffs pray that they receive the

following:

A. A judgment against Defendants for all damages requested in this

Petition, and that Plaintiffs recover costs, prejudgment and post-
judgment interest at the legal rate, and reasonable and necessary
attorneys fees;

B. A temporary injunction in accordance with the proposed order

attached as Exhibit K, which will prevent future floods of
Plaintiffs Properties until they receive their day in Court;

C. A permanent injunction, which prohibits Defendants from

flooding Plaintiffs Properties in the future; and

D. Any other such further relief, general and special, to which

Plaintiffs are entitled under law and equity.

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Date: October 2, 2017 Respectfully submitted,

RALEY & BOWICK, LLP

/s/ Bradford T. Laney

Bradford T. Laney
State Bar No. 24070102
Robert M. Bowick
State Bar No. 24029932
1800 Augusta Drive, Suite 300
Houston, Texas 77057
Tel: (713) 429-8050
Fax: (713) 429-8045
Email: blaney@raleybowick.com
rbowick@raleybowick.com

ATTORNEYS FOR PLAINTIFFS

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