Downstream property owners who claim their property was unconstitutionally “taken” by the San Jacinto River Authority (SJRA) during Harvey face more delays in their legal battle for compensation. A final outcome could still be years away.

Appeal After Appeal

After losing a motion to dismiss the case against it in 2020, SJRA appealed the ruling. But the appellate court also ruled against the SJRA and remanded the case back to the trial court for further proceedings.

So, the SJRA then entered a “plea to the jurisdiction.” Basically, a plea to the jurisdiction also seeks to dismiss a case. But it does that by challenging the court’s subject-matter jurisdiction, not by arguing the merits of the case.

On December 16, 2022, the trial court dismissed that, too. Now the SJRA is appealing the dismissal of its plea to the jurisdiction as well. SJRA uses a quirk of Texas law that allows government agencies to file appeals before a case is decided, thus dragging them out.

In the meantime, SJRA has been attacking the report of Dr. Phillip Bedient, a professor of engineering at Rice University, acting as an expert witness for the plaintiffs. Bedient’s report contains explosive allegations. If a jury finds them persuasive, it could be very costly to the SJRA and State of Texas, which backstops the SJRA financially.

SJRA’s delaying tactics and appeals suggest it fears Bedient’s testimony in front of a jury.

Seven Months Arguing over an Expert Witness

The chronology of 334 filings to date with the Harris County Clerk in this case (#1123430) reveals as much about the SJRA legal strategy as the contents of the SJRA filings themselves.

The latest dust-up over Bedient started in August 2022. SJRA claimed plaintiffs had not given them notice of Bedient’s expert testimony. Plaintiffs had given notice two years earlier.

Then it took almost two months to find a mutually agreeable time for Dr. Bedient’s deposition. During that time, the two sides argued about document production related to Bedient’s testimony. SRA allegedly requested the same documents more than once; plaintiff’s claim they produced them and were under no obligation to produce them twice.

On October 27, 2022, SJRA asked for a continuance until plaintiffs complied. Then, on October 31, plaintiffs again claimed they had complied and that SJRA was trying to manufacture a “discovery non-compliance dispute where none exists, presumably as a pretext to inject further unnecessary delay into this case.”

The next item in the court record (November 28, 2022) is SJRA’s objections to Bedient’s declaration. SJRA urged the judge to strike Bedient’s testimony. Plaintiffs objected to SJRA’s objections on 12/1/2022.

On 12/16/2022, the judge denied SJRA’s objections to Bedient’s testimony.

Then, on 1/4/2023, SJRA gave notice of its intent to file an interlocutory appeal on its plea to the jurisdiction. But it took a whole month for the SJRA to write a $3,067 check for the appeal.

Next, the SJRA requested the clerk to forward more records to the court of appeals. Three and a half months later, on 5/18/2023, the clerk finally filed the receipt for the additional records with the court of appeals.

Net: the SJRA has spent the last 7 months trying to keep Bedient’s testimony from being heard by a jury. One legal expert I talked to predicts that the SJRA will appeal its plea to the jurisdiction all the way to the Texas Supreme Court. And that plea revolves heavily around Bedient’s testimony.

Bombshells in Bedient Testimony

So, what did Bedient claim that could be so damaging? Read his entire testimony here. It contains a number of explosive allegations.

1. SJRA told the court it did not model a “no-Lake-Conroe-Dam Scenario.” But Bedient claims SJRA produced a “no dam” model during discovery. Oops!
2. The no-dam scenario showed:
   • Lower flood peaks downstream than with the 79,000 cubic-feet-per-second SJRA actually released
   • Flood peaks without a dam would have arrived slower and given people more time to evacuate.
3. SJRA originally designed a dam that would have served two purposes: flood control and water supply. It later modified the design before construction to be water supply only.
4. Flooding would have been less damaging had SJRA constructed the flood-control dam originally authorized.
5. SJRA justified its release of 79,000 CFS by saying peak inflow was 130,000 CFS. But Bedient says the 130,000 estimate was a short-lived spike from one small area, and that had the SJRA averaged the inflow across the entire watershed, it could have released far less water – 60,000 CFS – while still following its dam operating procedures.
6. A 1994 storm, during which SJRA released 33,000 cubic feet per second from Lake Conroe, badly flooded Kingwood and Humble. The SJRA later modified its gate operating procedures to avoid downstream flooding, but then released 79,000 CFS during Harvey.
7. Downstream flooding will likely recur as a result of the current design and operation of the Lake Conroe Dam.

Read more about these and Bedient’s other conclusions on pages 25-27. No wonder SJRA is fighting this testimony!

At the current rate, it could be years before this case goes to trial. Two-years ago – on 5/21/21, the judge issued a deadline for challenges to expert testimony; they were supposed to have been heard 18 months ago.

Posted by Bob Rehak on 5/20/23

2090 Days since Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.