Professional Documents
Culture Documents
Lake Residents Vs Gbra 2
Lake Residents Vs Gbra 2
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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
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
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
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
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
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
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
BACKGROUND
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
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
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
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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
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
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;
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
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.
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:
• 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 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
TCEQ Requirements:
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
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
22. Section 299.41, TEX. ADM. CODE, specifies GBRA’s “responsibilities” with regard
(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.
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
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
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 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.
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
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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.
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
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
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
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
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
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
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
“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
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
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levees in question or to continue to spend money on themselves and for what they perceived as
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
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
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.
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
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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.
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:
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.
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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
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
53. The Plaintiffs seek the following mandatory injunctive and prohibited injunctive
relief:
20
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;
21
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;
54. Paragraphs 2 through 53 are incorporated herein for all intents and purposes as if
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”)
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
22
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
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
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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
24
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
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
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.
25
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
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,
26
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
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,”
27
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:
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
28
(2) Probable and Imminent Injury:
71. The infliction of real and immediate injury is not only possible, but it is actually a
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
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
29
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.
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
Bond:
77. Rule 684, Tex. R. Civ. P. states in pertinent part the following:
78. In this situation, GBRA has been sued as a “State agency” and as a “subdivision of
30
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
CONDITIONS PRECEDENT
80. Paragraphs 2 through 79 are incorporated herein for all intents and purposes as if
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
31
REQUEST FOR DISCLOSURE
84. Plaintiffs request that the Defendants disclose all information and materials
PRAYER
above and for such other and further relief, at law and in equity, to which they may show
Respectfully submitted,
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
32
FIRST VERIFICATION
THESTATEOFTEXAS §
§
GUADALUPE COUNTY §
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:
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.
At:.J.-~"\
Swom to and subscribed before me this -~
--~_ day o(Sei*ember, 2019.
My Commission Expires:
•
® ELIZABETH A. SANTOS
Notary Public
STATE OF TEXAS . . "'
My Comm .,. " : : : }
10# 130671012
·····YYYYy·········..
2
SECO ND VERIFICA TI O~
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.
~Jk<.L ~ \_,lA...{..A.4 .)
TARY PUBLIC IN AND FOR
( J Ifo& /ole;& I
~I
THIRD VERIFICATION
THESTATEOFTEXAS §
§
GUADALUPE COUNTY §
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:
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.
My/Commission Expires:
~ g ((_o'(__ L
FOURTH VERIFICATION
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:
NOTARYPUBLi r
THE STATE OF