State of Texas and Aransas County, Texas v. John R. Agnew, etal.--Appeal from 156th District Court of Aransas County

 NUMBER 13-05-00143-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

THE STATE OF TEXAS, TEXAS DEPARTMENT OF

TRANSPORTATION, AND ARANSAS COUNTY, Appellants,

v.

JOHN R. AGNEW, ET AL., Appellees.

 On appeal from the 156th District Court of Aransas County, Texas.

 MEMORANDUM OPINION

 Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa

Appellants, the State of Texas, Texas Department of Transportation, and Aransas County, bring this accelerated interlocutory appeal following the trial court=s denial of their pleas to the jurisdiction.[1] Appellants contend the trial court erred in denying their pleas to the jurisdiction because appellees, John R. Agnew, et al.,[2] failed to plead a valid inverse condemnation claim and, thus, appellants are immune from suit. We reverse and render.

A. Background

Appellees are property owners in Aransas County. Appellees sued appellants for flood damage. In their Second Amended Petition, appellees alleged that on or about November 20, 2002, appellants, while constructing the State Highway 35 Bypass, undertook actions that altered the natural flow and diverted and impounded surface waters near appellees= homes and property causing flooding and damage, and pumped water from the east side of the highway to the west side, further causing flooding and damage. Appellees assert that the property damage they incurred constitutes a Ataking@ without adequate compensation in violation of article 1, section 17 of the Texas Constitution. See Tex. Const. art. I, ' 17.

Appellants filed pleas to the jurisdiction asserting sovereign immunity because appellees= pleadings failed to establish an inverse condemnation claim under article 1, section 17 of the Texas Constitution. After twice affording appellees the opportunity to amend their petition,[3] with appellees re-pleading each time, the trial court denied appellants= pleas to the jurisdiction, and this appeal ensued.

B. Standard of Review

A plea to the jurisdiction is a dilatory plea; its purpose is Ato defeat a cause of action without regard to whether the claims asserted have merit.@ Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdiction is a question of law subject to de novo review. Tex. Natural Res. Conservation Comm'n v. IT Davy, 74 S.W.3d 849, 855 (Tex. 2002). In performing this review, we do not look to the merits of the case, but consider only the pleadings and evidence relevant to the jurisdictional inquiry. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Sovereign immunity from suit deprives a trial court of subject-matter jurisdiction and, thus, is properly asserted in a plea to the jurisdiction. Miranda, 133 S.W.3d at 224 26; Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 637-38 (Tex. 1999).

D. Analysis

Appellants contend that appellees failed to affirmatively demonstrate that the trial court has jurisdiction over their claims because appellees failed to sufficiently allege an inverse condemnation claim under article I, section 17 of the Texas Constitution. Specifically, appellants assert that appellees failed to sufficiently allege the elements of intent and public use.

To recover under article I, section 17 of the Texas Constitution, a claimant must establish that (1) the governmental entity intentionally performed certain acts, (2) that resulted in a taking of the property, (3) for public use. See Gen. Servs. Comm=n v. Little-Tex. Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). The requisite intent is present when a governmental entity (1) knows that a specific act is causing identifiable harm, or (2) knows that the harm is substantially certain to result. Tarrant Reg=l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex. 2004); City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004). In the case of flood-water impacts, recurrence is a probative factor in determining the extent of the taking and whether it is necessarily incident to authorized government activity, and therefore substantially certain to occur. Gragg, 151 S.W.3d at 555 (citing Brazos River Auth. v. City of Graham, 354 S.W.2d 99, 107 (Tex. 1961)). While nonrecurrent flooding may cause damage, a single flood event does not generally rise to the level of a taking. Id. The recurrence requirement assures that the government is not held liable for taking property when a project=s adverse impacts, and by implication its benefit to the public, are too temporal or speculative to warrant compensation. Id.

Appellees= Second Amended Petition alleges only a single flooding event, which occurred on or about November 20, 2002. Appellees= petition does not allege recurrent flooding. Furthermore, the petition contains no allegations that appellants knew that flooding was substantially certain to occur. Accordingly, we conclude that appellees have failed to sufficiently allege a valid inverse condemnation claim.

E. Conclusion

Because appellees have failed to sufficiently allege a valid inverse condemnation claim, we hold that appellants are immune from suit. Accordingly, we reverse the trial court=s order denying appellants= pleas to the jurisdiction. We grant appellants= pleas to the jurisdiction and render judgment that appellees= claims against appellants be dismissed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed

this the 15th day of June, 2006.

[1] See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon Supp. 2005).

[2] Appellees are John R. Agnew, Mark Boose, Angela Boose, Diane Coots, James Coots, Danny Frankhauser, Shelly Frankhauser, Greg Hartman, Shanna Hartman, Oscar Hinojosa, Jr., Lisa Hinojosa, James Hudson, Brenda Hudson, Ray Alvin Kidd, Shirley Jean Kidd, Leonard Nelson, Louis Peacock, Jr., Ninfa Peacock, Thomas Porter, Joe Sampert, Linda Sampert, Richard Smith, Tasha Smith, Steven Taylor, Gracie Taylor, Donald Walter, Rachal Walter, Yolanda Wallace, Eugene Wallace, Sr., Robert Hinojosa, Jr., Petra Hinojosa, Joe Frank, Kathy Frank, Ronald Flint, Ernest King, Sr., Shannon King, Pete Vick and Lauralie Vick.

[3]See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002) (AWhen a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend.@)